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Levasseur v. Lowery8/1/2000
resident superior court ... to determine the subrogation amount. N.C. Gen. Stat. § 97-10.2(j)(1998).
Accordingly, there are two instances whereby the trial court is given jurisdiction: (1) where the judgment is insufficient to compensate the subrogation claim of the workers' compensation carrier, or (2) where a settlement has been agreed upon by the employee and the third party.
Beam contends the trial court erred in assuming jurisdiction since the agreement between plaintiff and Travelers was not a valid "settlement" as recognized by the statute, but merely an attempt to circumvent it.
The trial court found in part:
16. The plaintiff, Travelers and the defendant have resolved all issues in dispute among them concerning the payment of the arbitration award, issues of setoff under the Travelers policy for workers' compensation benefits paid, pre- and post-judgment interest, and all other issues, by way of an Agreement dated December 29, 1998. Said Agreement is part of the record of this case.
17. The settlement agreement provides that Travelers, pursuant to the language of its policy and recent North Carolina Supreme Court cases interpreting that policy language, is entitled to a setoff or credit for amounts paid to the plaintiff by workers' compensation ....
The parties to the agreement do not contest its validity. We agree with the trial court's findings and conclusion that the settlement agreement reached by the plaintiff and the third party gave the trial court jurisdiction.
Beam also argues that since plaintiff agreed to invoke the jurisdiction of the Commission for the interim disbursement of the $25,000.00 recovery, the Commission had exclusive jurisdiction. Beam cites Buckner v. City of Asheville, 113 N.C. App. 354, 438 S.E.2d 467, disc. review denied, 336 N.C. 602, 447 S.E.2d 385 (1994), for the proposition that once the request for disbursement is submitted to the Commission, the superior court no longer has jurisdiction.
In Buckner, the plaintiff-employee, while in the course of his employment, was injured in an automobile accident by a tortfeasor. The employer provided UIM coverage for the employee. The employee, employer, and tortfeasor executed a consent judgment and submitted the matter to the superior court for disbursement. Id. at 356-57, 438 S.E.2d at 468. To give the superior court jurisdiction, N.C. Gen. Stat. § 97-10.2(j), as in effect at that time, required that the employee-third party settlement be entered when the "action pending on a trial calendar and the pretrial conference with the judge ha been held." Since there was no evidence that the settlement occurred at such a time, this Court held that the superior court did not have jurisdiction and exclusive jurisdiction was therefore assumed by the Commission. Id. at 360, 438 S.E.2d at 470.
Under N.C. Gen. Stat. § 97-10.2, the "distribution issue can be decided in some instances by either the Commission or the trial court, with `a different standard for disbursement when the case is before the Superior Court than that for cases before the Industrial Commission.'" Id. at 359, 438 S.E.2d at 470 (quoting Pollard v. Smith, 90 N.C. App. 585, 588, 369 S.E.2d 84, 86 (1988), reversed on other grounds, 324 N.C. 424, 378 S.E.2d 771 (1989)).
Here, even though the Commission assumed jurisdiction over disbursement of the $25,000.00 recovery, this does not preclude the superior court from properly assuming jurisdiction as a result of the settlement reached between plaintiff and Travelers.
Next, Beam argues the trial court erred in concluding it did not have a lien on the plaintiff's settlement with Travele
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