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Martinez v. St. Joseph Hospital and Nursing Home of Del Norte Inc.12/30/1993
compensate for lost wages. Tate v. Industrial Claim Appeals Office, supra. Noneconomic damages, such as pain and suffering, are excluded. Kennedy v. Industrial Commission, supra.
At trial, SCIA pursued recovery of monies it had expended for economic damages. The jury was instructed that, if it found in favor of SCIA, it was to award as damages the amount of workers' compensation benefits reasonably and necessarily paid to plaintiff. Plaintiff pursued only a recovery of noneconomic damages, and the jury was instructed to limit its consideration and determination of plaintiff's damages to noneconomic losses or injuries, including pain and suffering, inconvenience, emotional stress, impairment of the quality of life, and physical impairment or disfigurement. The jury followed these instructions by assigning separate monetary recoveries to plaintiff and to SCIA.
Consequently, here, in contrast to Kennedy, there was no unilateral characterization by plaintiff, without the knowledge of SCIA, that he sought recovery only for elements of pain and suffering. Rather, SCIA agreed to this dichotomy as evidenced by its conduct throughout the trial and its acceptance of the instructions to the jury.
Furthermore, SCIA has implicitly recognized that plaintiff's award for pain and suffering exceeds its rights as subrogee by not asserting a claim to plaintiff's entire award as compensation for the deficiency between its expenditures on plaintiff's behalf and its lesser recovery at trial. Instead, SCIA seeks only to uphold the trial court's reduction, in its favor, of plaintiff's recovery. We conclude that it may not do so.
SCIA seeks enlargement of its subrogation rights by recovering from damage elements it could not have directly pursued and by avoiding the negative connotations inherent in its position as a substitute for plaintiff. Nevertheless, when SCIA assumed the position of plaintiff as subrogee, it became subject to the limitations, restrictions, and defenses to which plaintiff was also subject. And, because plaintiff is limited in his recovery by the statutory offset of comparative negligence, SCIA is likewise limited.
We find no authority for differentiating between such an offset and any other restriction to which a subrogee is subject. Rather, such an enlargement of rights would relieve the subrogee of a burden then borne doubly by plaintiff, thus creating in the subrogee a superior, rather than equal, status.
In consequence, we conclude that the trial court erred in its reduction of plaintiff's recovery in favor of SCIA.
II.
Plaintiff contends in the alternative that the trial court erred in its denial of his motion for attorney fees. In light of our Disposition, we do not address this contention.
The judgment is reversed, and the cause is remanded for Disposition of the judgment amount consistent with the views expressed herein.
JUDGE TURSI and JUDGE TAUBMAN concur.
Disposition
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS
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