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Levasseur v. Lowery8/1/2000
ient to provide for meaningful appellate review. Allen v. Rupard, 100 N.C. App. 490, 495 S.E.2d 330, 333 (1990) (citations omitted).
The trial court made findings concerning the extent of plaintiff's injuries. The trial court concluded Beam did not have a lien on plaintiff's settlement but that if Beam were later determined to have a lien, then the trial court, in its discretion, eliminated the lien to prevent an injustice.
The findings and conclusions of the trial court do not comport with the requirements set forth in Allen, supra. Once the lien is established and the trial court considers a request for disbursement, it must make a reasoned choice, a judicial value judgment and enter findings and conclusions which can provide for meaningful review on appeal.
Finally, Beam argues the trial court erred in awarding an unreasonable attorney fee to plaintiff, which was one-third of plaintiff's recovery from Travelers.
Plaintiff and his attorneys entered a contingent fee agreement which provided that the attorney fee would be one-third of the amount recovered after suit was filed plus costs. N.C. Gen. Stat. § 97-10.2(f)(1) requires the Commission to disburse monies as prioritized in the statute and provides for the attorney fee "not exceed one third of the amount obtained or recovered of the third party." While the trial court is not bound by this subsection, it supports the trial court's approval of the contingency fee agreement. Accordingly, we find no abuse of discretion in the trial court's approval of the attorney fee agreement.
In sum, Travelers is a "third party" within the meaning of N.C. Gen. Stat. § 97-10.2 and the trial court properly assumed jurisdiction of the matter pursuant to N.C. Gen. Stat. § 97-10.2(j). The trial court did not err in approving the fee agreement between plaintiff and his attorneys. The trial court erred in concluding that Beam did not have a lien on the UIM benefits recovered by plaintiff from Travelers, and we remand this case for further proceedings consistent with this opinion.
Affirmed in part; reversed in part and remanded.
Judge TIMMONS-GOODSON concurs.
Judge GREENE concurs in part and dissents in part.
GREENE, Judge, concurring in part and dissenting in part.
I do not agree Beam's workers' compensation lien attached to plaintiff's settlement proceeds from Travelers.
This case presents for the first time the issue of whether a workers' compensation carrier/employer is entitled to a lien on the employee/plaintiff's personal injury proceeds received from a UIM carrier, when the UIM carrier has been given a credit in the amount of the payments made by the workers' compensation carrier/employer to the insured/employee. Our Supreme Court has held a UIM carrier is entitled to reduce its UIM coverage to its insured by the amount of workers' compensation the insured/employee has already received. McMillian v. N.C. Farm Bureau Mut. Ins. Co., 347 N.C. 560, 565, 495 S.E.2d 352, 354-55 (1998). In so holding, the McMillian court overruled this Court's holding in Ohio Casualty Group v. Owens, 99 N.C. App. 131, 392 S.E.2d 647 (1990) that the UIM carrier was not entitled to a credit for the workers' compensation payments made to the insured/employee. McMillan, 347 N.C. at 565, 495 S.E.2d at 355. The McMillian court did not address the question of whether the workers' compensation carrier/employer was also entitled to a lien on the UIM proceeds received by the insured/employee. Accordingly, left undisturbed was that portion of the Ohio Casualty opinion that the workers' compensation carrier/employer was entitled to a lien on the UIM proceeds receiv
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