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Chesapeake Haven Land Corporation v. Litzenberg11/30/2001
The single issue raised by this appeal is whether the Circuit Court for Cecil County calculated correctly the amount of credit against future worker's compensation benefits an employer/insurer was entitled to claim from an award obtained by a claimant in a third-party proceeding. The appellant (employer and insurer) submits that the entire net award of $212,687.30 is the correct amount of the credit; the appellee (claimant) insists that $60,285.22 is the right figure.
Undisputed Facts
On April 22, 1993, Monteith Gilpin Litzenberg, appellee herein, was injured in a motor vehicle accident when a tarpaulin blew off a truck in front of him and covered the windshield of a vehicle approaching appellee. The driver of the third vehicle lost control and a head-on collision occurred between the third vehicle and appellee.
Appellee was driving a vehicle owned by his employer, Chesapeake Haven Land Corporation. He filed a claim for worker's compensation benefits dated July 1, 1993, indicating that he had been unable to return to work due to injuries to his back, legs, and knees. His employer's compensation insurer, Pennsylvania National Insurance Company, provided appellee with medical, vocational rehabilitation, and temporary total disability benefits.
In addition to his compensation claim, appellee filed a tort action against David A. Bramble, Inc., and Cramaro Tarpaulin Systems, Inc., the third-party defendants. In January 1996, a jury in the Circuit Court for Cecil County returned a verdict for appellee in the amount of $349,400. The damages were itemized as follows:
Past medical and rehabilitation expenses.....$28,900
Future medical and expenses..................$13,500
Past lost earnings...........................$34,000
Future loss of earnings......................$213,000
Non-economic damages.........................$60,000
Appellee suffered a permanent back injury that precluded his return to Chesapeake Haven and some unrelated work he performed in restoring houses. He received vocational rehabilitation training resulting in a job where he earned the same income he had received at Chesapeake Haven.
The third-party defendants appealed the jury verdict. In Anderson, et al. v. Litzenberg, 115 Md. App. 549 (1997), this Court (Harrell, J.) affirmed the judgment. The issues on appeal in that case related to instruction on spoliation of evidence (the tarpaulin had been destroyed), admission of evidence relating to costs of a replacement worker, and alleged error in denying a new trial on the issue of the loss of future earning capacity. The issues were decided adversely to appellants for failure to raise the same at trial, or failure to support with authority their position. The Court did acknowledge that "appellee concedes that his future economic loss claim is based solely on the earnings he would have derived from his unrelated real estate renovation business."
In addition to his employment with Chesapeake Haven, appellee operated his own part-time real estate business, which consisted of buying "run down" houses, restoring, and renting these properties by his own labor. It is the secondary employment award that adds to the misunderstanding between the parties herein. The issue before us in this appeal is whether the compensation insurer's subrogation interest in appellee's third-party recovery extends to the $213,000 future economic loss award for damage to appellee's continuation of his real estate business, which is separate from his employment with Chesapeake Haven.
Appellee contends that appellant has no subrogation rights against the $
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