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Tomlin v. Vance International Inc.5/21/1996
OPINION BY CHIEF JUDGE NORMAN K. MOON
David Michael Tomlin appeals from the order of the Workers' Compensation Commission holding that Vance International, Inc. and its insurer did not waive subrogation rights in a settlement of his compensation claim. Because the employer unequivocally waived its subrogation rights when it settled Tomlin's workers' compensation claim, we reverse the commission's ruling.
Tomlin was employed as a security guard by Vance International. On September 9, 1989, Tomlin was assaulted during a riot and was severely injured. After the accident, the employer paid certain workers' compensation benefits pursuant to the Minnesota Workers' Compensation Act. Tomlin then elected to file a claim in Virginia pursuant to Code ยง 65.2-508. Vance International denied the claim initially but ultimately accepted it as compensable. On September 5, 1991, Tomlin filed suit against several third parties who were allegedly responsible for his injuries.
On April 8, 1992, Vance International and Tomlin forwarded to the commission a petition, order, and affidavit setting forth the terms of a settlement of Tomlin's workers' compensation claim. The commission approved the petition on April 15, 1992. At various times after that date, Tomlin settled his claims against the third parties. Vance International asserts that it is subrogated to Tomlin's claim against the third parties and is entitled to reimbursement from the third-party settlement funds. Tomlin maintains that Vance waived its subrogation rights when it settled the workers' compensation claim. Tomlin's counsel is holding the proceeds from the third-party settlements pending resolution of the subrogation issue.
The above facts were stipulated by the parties before the commission. The record also contains parol evidence in the form of correspondence exchanged by the parties during negotiations to settle the workers' compensation claim. The correspondence indicates that Vance International knew about the personal injury case in Minnesota and provided videos of the riot in order to assist Tomlin in that case. The correspondence also indicates that Tomlin was aware of "a potential worker's compensation lien being filed in Minnesota" and that Vance's assistance with the third-party claim was related to that lien in some manner.
The parties' petition to the commission provides, in pertinent part:
This compromise settlement shall be binding upon the Claimant, the employer and/or its insurer and is intended to be a full and final settlement of any claims, demands and obligations, between the Claimant and/or the employer, or its insurance carrier which might be asserted by the Claimant and/or employer, or its insurance carrier, pursuant to the Virginia Workers' Compensation Act, Virginia Code Section 65.2-100 et seq.
The Claimant, employer and its carrier further represent that they understand and agree that this compromise agreement, upon approval, constitutes a full and final settlement of this claim and that the Claimant, employer and insurance carrier shall thereupon be forever released and discharged from any and all liabilities, past, present and future in connection with this case including but not limited to, benefits for work incapacity, vocational rehabilitation services, placement services, benefits for permanent disability, and any rights which might be alleged to arise under Virginia Code Section 65.2-100 et seq., . . . .
The commission's order approving the petition provides, in pertinent part:
it is hereby
ORDERED that the employer and insurance carrier shall pay the sum of $86,000 to the Claimant in a lump sum and t
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