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Levasseur v. Lowery8/1/2000
ed by the insured/employee. Ohio Casualty, 99 N.C. App. at 137, 392 S.E.2d at 651.
Beam, plaintiff's employer in this case, argues and the majority agrees McMillian and Ohio Casualty, when read together, hold the UIM carrier is entitled to a credit for workers' compensation payments made and the workers' compensation carrier/employer is entitled to a lien on the proceeds received by the insured/employee. I disagree.
That portion of the Ohio Casualty opinion relating to the workers' compensation lien must be read in the context of its holding that the UIM carrier was not entitled to a credit for payments made by the workers' compensation carrier/employer. To allow both a credit to the UIM carrier and a lien to the workers' compensation carrier/employer would penalize the insured/employee and thus deny him the full compensation for his injuries to which he is entitled under the law. Therefore, McMillian must be read, in the context of a case where the UIM carrier has previously been given a credit for the workers' compensation payments, to overrule that portion of Ohio Casualty providing for a workers' compensation lien on the UIM proceeds received by the insured/employee. Accordingly, because Travelers received a credit for the workers' compensation payments made by Beam in its payment to plaintiff, Beam was not entitled to a lien on the proceeds received by plaintiff from Travelers.
As I fully concur with the majority on the other issues addressed in its opinion, I would affirm the order of the trial court in all respects.
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