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Bartell v. Sawyer3/2/1999
ntitled to their pro-rata share of plaintiff's pre-judgment interest award to prevent double recovery by plaintiff. Our Court addressed a similar issue in Absher v. Vannoy-Lankford Plumbing Co., 78 N.C. App. 620, 337 S.E.2d 877 (1985), disc. review denied, 316 N.C. 730, 345 S.E.2d 385 (1986). In Absher, the employee filed an action for personal injury in Superior Court and the defendant filed an answer asserting that the employee's injuries were caused by joint and Concurring negligence of her employer. A jury awarded plaintiff damages in the amount of $26,400. Pursuant to N.C. Gen. Stat. § 97-10.2(e), the trial court "reduced the employee's award by $20,108.16, the amount which plaintiff's employer would otherwise have been entitled to receive by way of subrogation, and entered judgment awarding plaintiff the principal sum of $6,291.84 plus 8% interest from the date the action was instituted." Absher at 621, 337 S.E.2d at 877. On appeal to our Court, we held that the employee was not entitled to interest on the entire award where that award had been reduced by the amount she had received in workers' compensation benefits. We stated that:
"Under G.S. 24-5, plaintiff is entitled to receive interest on the portion of her "money judgment" that represents "compensatory damages." Because plaintiff had already received a workers' compensation award of $20,108.16, the judgment awarded plaintiff $6291.84 in damages. The trial court arrived at that figure by following the requirements of G.S. 97-10.2(e). After the reductions required by statute are made, it can be determined what amount plaintiff is actually entitled to receive. Interest should be calculated based on the amount plaintiff is actually entitled to receive." Id. at 623-24, 337 S.E.2d at 879.
As stated in Absher, pre-judgment interest is to be calculated based upon the amount of money plaintiff is entitled to receive once an employer's subrogation lien for workers' compensation payments has been satisfied. Absher at 624, 337 S.E.2d at 879. In the present case, plaintiff was awarded $95,000 by the jury and received $5,000 in pre-judgment interest. Pursuant to N.C. Gen. Stat. § 97-10.2(f)(1), defendants received $44,378.40 of plaintiff's third party recovery as reimbursement for workers' compensation payments previously made. Following the jury award, the Commission's executive secretary entered an order in employee's workers' compensation action dividing the pre-judgment interest between the employee and employer on a pro-rata basis, with the employer receiving $1,566.67. A deputy commissioner also determined the employer was entitled to receive this amount. The Commission, citing Absher, held that plaintiff was entitled to the entire pre-judgment interest on the amount he actually recovered, which was $95,000 less the $44,378.40 paid to defendants.
Neither Absher nor N.C. Gen. Stat. § 97-10.2(f)(1) direct that defendants receive a share of plaintiff's pre-judgment interest award. Disbursal of pre-judgment interest is not specifically addressed in N.C. Gen. Stat. § 97-10.2(f)(1). However, the plain language of N.C. Gen. Stat. § 97-10.2(f)(1)d. unambiguously directs disbursal to plaintiff of "any amount remaining." Therefore, defendants' other assignments of error need not be addressed.
The opinion and award of the Industrial Commission is affirmed.
Affirmed.
Judges JOHN and WALKER concur.
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