Absher v. Vannoy-Lankford Plumbing Co., 78 N.C. App. 620

Absher v. Vannoy-Lankford Plumbing Co.

78 N.C. App. 620 | N.C. Ct. App. | 1985

EAGLES, Judge.

By her first assignment of error, plaintiff asserts that the trial court erred in denying her motion in limine and her motion to strike and in submitting the issue of employer’s joint and concurring negligence to the jury. In essence, plaintiff appeals the trial court’s decision to allow the jury to decide whether plaintiffs employer’s negligence concurred with that of defendant. The basis of plaintiffs argument is that Coca-Cola, plaintiffs employer, was not properly served with defendant’s answer alleging joint and concurrent negligence. Because plaintiff is not a party aggrieved, plaintiff has no standing. As to this first assignment of error, plaintiffs appeal is dismissed.

G.S. 1-271 provides for the right of appeal to any “party aggrieved.” The “party aggrieved” is the one whose rights have been directly and injuriously affected by the judgment entered in the superior court. Freeman v. Thompson, 216 N.C. 484, 5 S.E. 2d 434 (1939). Plaintiff here is not a “party aggrieved.” All issues submitted to the jury were answered in her favor. Further, plaintiffs attorney did not represent plaintiffs employer, Coca-Cola. Whether or not Coca-Cola was properly served with defendant’s answer has no bearing on plaintiffs recovery. G.S. 97-10.2(e) (1979) provides that where the jury finds that the employer’s negligence joined and concurred with the third party’s negligence to cause plaintiffs injuries, the plaintiffs award must be reduced by “the amount which the employer would otherwise be entitled to receive therefrom by way of subrogation . . . and the entire amount recovered, after such reduction, shall belong to the employee.

Whether Coca-Cola was properly served is of significance only to Coca-Cola if it had chosen to defend against allegations that its negligence concurred with the defendant’s negligence in causing injury to plaintiff, Even if the jury found the negligence issue in favor of Coca-Cola, plaintiffs award would still be reduced as required by G.S. 97-10.2(f)(l) (1979) which provides in pertinent part:

[I]f an award final in nature in favor of the employee has been entered by the Industrial Commission, then any amount *623obtained by . . . judgment against . . . the third party by reason of such injury . . . shall be disbursed by order of the Industrial Commission for the following purposes and in the following order of priority:

a. First to the payment of actual court costs taxed by judgment.

b. Second to the payment of the fee of the attorney representing the person . . . obtaining judgment. . . .

c. Third to the reimbursement of the employer for all benefits by way of compensation or medical treatment expense paid or to be paid by the employer under award of the Industrial Commission. [Emphasis added.]

d. Fourth to the payment of any amount remaining to the employee or his personal representative.

Either way, plaintiffs ultimate recovery would be limited to $6291.84 which represents the difference between the $26,400 jury award and the $20,108.16 workers’ compensation award.

Accordingly, we hold that as plaintiff was not a “party aggrieved” by the judgment entered in the Superior Court, plaintiffs appeal as to this first assignment of error is dismissed.

Plaintiff assigns as error that the court erred in limiting interest allowed to interest on $6291.84 and not permitting interest on the unreduced amount of the jury award. Plaintiff s argument is wholly without merit.

The jury found that plaintiff was damaged in the amount of $26,400. G.S. 97-10.2 contemplates that the employee’s action against a “third party is to be tried on its merits as an action in tort,” and any verdict “adverse to the third party is to declare the full amount of damages suffered by the employee,” notwithstanding any award for compensation under the Workers’ Compensation Act. Lovette v. Lloyd, 236 N.C. 663, 668, 73 S.E. 2d 886, 891 (1953).

Under G.S. 24-5, plaintiff is entitled to receive interest on the portion of her “money judgment” that represents “compensatory damages.” Because plaintiff had already received a workers’ com*624pensation award of $20,108.16, the judgment awarded plaintiff $6291.84 in damages. The trial court arrived at that figure by following the requirements of G.S. 9740.2(e). After the reductions required by statute are made, it can be determined what amount plaintiff is actually entitled to receive. Interest should be calculated based on the amount plaintiff is actually entitled to receive. Accordingly, plaintiffs second assignment of' error is overruled.

The result here is that as to plaintiffs first assignment of error the appeal is dismissed. In all other respects, we find no error in the trial.

Dismissed in part; no error.

Chief Judge Hedrick and Judge Wells concur.