*1 105 1968] Asbestos Gamble v. Amer. v. AMERICAN GAMBLE ASBESTOS COMPANY. PRODUCTS Opinion op the Court. Compensation Against
1. —Statutes—Intent—Action Workmen’s Third-Party Tort-Feasor. permitting Purpose provision in act workmen’s sue is to employee to a third enable the recovery beyond amount which can be recovered obtain benefits, provision in compensation the statute and the under first or its workmen’s it “shall reimburse reveals compensation insurance carrier” intent object permitting third-party is, first, bring reimbursement, about such tort-feasor 1961, go employee (CLS excess thereafter §413.15). — — Judgment — — — Re- Intent Settlement 2. Same Statutes op Employer Insurance Carrier. imbursement do not Statutory provisions in money judgment between received differentiate money of settle- third-party received reason tort-feasor and ment; hence, any from are to net applied employer or first to reimburse its be 413.15). 1961, (CLS § Opinion. Dissenting O’Hara, Compensation Third-Party
3. Tort-Feasor —Elec- — Workmen’s tion Remedies. resulting Acceptance workmen’s elec- injury not an where there was a tort-feasor [3] [1, [4, 2] 58 58 Am Workmen’s Am Workmen’s Am Jur, Jur, References Jur, Workmen’s for Points Compensation Compensation Compensation §§ Headnotes §§ 65, § 66, 66. 358 et 366. seq. 381 Mich injured employee may remedies, tion and the also damages third-parly (CL 1948, tort-feasor 413.15, 155). FA No as amended Third-Party Remedies. Tort-Eeasor —Election 4. Same — *2 employer or its insurance carrier An enforce third-party an a name of if tort-feasor year, begun within 1 an action has not brings against the third- an action and who notify employee, the in- must tort-feasor carrier, commission and the worlcmen’s surance beginning (CL 1948, days §413.15, an action as by 1953, 155). amended FA No Beginning Third-Party Action. Tort-Eeasor —Notice 5. Same — bring- mandatory requirement notice before injury against third-party ing to an action tort-feasor for worlcmen’s which results party notified, imports mean- some action ing being waive his the action or that he must either 1948, 413.15, (CL FA as amended to share 1953, 155). No Appeal Compensation Appeal from Workmen’s (Calendar No. 9, March 1967. Board. Submitted 51,496.) July No. Decided 15, Docket presented Myrtella her claim Wheeler Company, employer, American Products Asbestos Michigan for Fund, State Accident insurer, granted was award workmen’s for loss of hand. Claimant subsequently started third-party which was action settled and discontinued. On defendant
denying defendant’s petition stop compensation granted credit to referee had received for net sums claimant to defendant K. from action settlement. Deanna sub- claimant, of estate of Gamble, administratrix appeal. plaintiff during of referee stituted affirmed Order Appeals by appeal denied Court board. Supreme granted by . appeal. On leave leave plaintiff appeals. Affirmed. Court, Amer. Gamble Asbestos v. Millender, & .Goodman Eden, Robb, Goodman, plaintiff. Bedrosian, Rogers, Earl A. Munroe, Richard G. B.
Peter Nelson, for defendants. William Mossner and Plaintiff-appellant states the C. J. Dethmebs, appeal question in this to be: involved n admittedly entitled “Where weekly workmen’s to the compensation against carrier, set- prior alleged claim tort-feasor tles her judgment, executing her individual discontinuing re- suit, therefor and release lease being a bar the workmen’s not compensation party proceeds are the claim, interest or for its workmen’s com- reimbursed to the thereof to be pensation *3 treated as advance compensation benefits?” of workmen’s way: succinctly appellees put it this stated, More “May a credit a carrier treat as payable against compensation settlement achieved paid a benefits compensation recipient by a third-party against a tort-feasor?” stipulated parties be, the facts to have The part, as follows: January
“Paragraph 26, 1956, One—On amputation plaintiff hand of the sustained an Michigan employed And the the defendant. while employer, insurer of the Fund, Accident State voluntarily paid of at the statu- benefits 215 weeks per tory week. rate of $32 following “Paragraph January 23,1961, Two—On hearing plaintiff’s application for on a general disability, the hear- the basis Mich ing providing entered order referee con- payment weekly tinued benefits per period at the rate week for the $32 following specific period loss and until the fur- department ther order in full force and effect. which order remains “Paragraph Three—Plaintiff herein instituted third-party suit the United States district court Michigan, for the eastern district of southern divi- Company sion, alleging negligence the W. and D. T. C. Sheridan design and installation of press plaintiff on which the was herein. given Notice was to the defendants herein in accord- Michigan ance 15, section 3 of the work- (Stat § men’s act, CLS 413.15 1961, 17.189). Ann 1960 Rev
“Paragraph Four—Defendants herein took no plaintiff. action to in said suit as a “Paragraph July, prior Five—In judgment plaintiff executed a release of her claim against the T. W. and D. third- Co., C. Sheridan * * * defendant. The said case was discontinued the United States district court and the consideration covered the release simultaneously very shortly thereafter. “Paragraph payment Six—After reasonable attorney plaintiff costs and recovery fees, received net $3,000 from the defendant. The in the aforesaid third case was extremely doubtful, settlement was essen- tially what determined a nuisance settlement. damage plaintiff possible had it been many establish would have been times amount of the settlement.” *4 hearing appeal referee and the of the board compensation department held that from proceeds by plaintiff the of the settlement received the insurance carrier entitled to a credit was compensation installments to become due it to Amur. Asbestos Gamble v. From this the of plaintiff Court in the future. appeal the matter is here on Appeals and denied granted. leave relating
Statutory matter are to this (Stat § Ann 1960 1961, 413.15 found CLS to be following: 17.189), particularly Rev compensation pay- injury for which “Where caused under circumstances act was under this able person legal liability creating other than some employ person or the in the same a natural acceptance respect damages pay thereof, proceedings taking or the payments not act as to enforce but such remedies, an election personal representative dependents or their or his of such may to enforce also damages in accordance with third provisions injured If this section. personal representative dependents does or or his year after the within 1 commence not such personal injury, then occurrence or its may, within period of actions time for the commencement prescribed of such statute, enforce person. person Not less name of that other days commencement of suit before the than 30 notify, any party section, under this registered by workmen’s address, mail at their last known commission, his known death, in the event his or representative personal dependents, or his known employer and the workmen’s com- his kin, next of pensation Any party carrier. in interest in said suit. shall have judgment, either the em- “Prior ployer or the his insurance may representative personal settle their claims appear execute re- their interest shall leases therefor. *5 Mich Opinion the Coukt. employee release the “Such settlement employer the to action or its a bar not be shall compensation said proceed against to insurance might any party or for interest claim it
have. employee “In the or his de- the event personal representative
pendents settle or shall injury pro- death, or or their claim for commence against ceeding the third thereon recovery compensation, payment of proceedings commencement shall not act as or any moneys remedies and so recovered election of provided. applied as shall be herein “In action to enforce the of a third party, the sentative plaintiff any recover amount which repre- dependents personal employee his or or would be entitled to recover in an action Any the third for (cid:127)in tort. personal injuries damages resulting from or death deducting expenses recovery, only, after employer first pensation or its workmen’s com- reimburse any paid insurance carrier for amounts or payable act to under the workmen’s recovery, date of and the balance shall forthwith dependents per- or his be representative and shall be as an treated sonal any on account of advance payment of future benefits.” statutory (1) taken is to be Note injured employee, despite permitting ac- proceed- ceptance taking compensation payments bring ings to enforce having legal tort-feasor injury; permitting (2) judgment against prior the third may appear party, his claim as his interest to settle permitting (3) therefor; release and execute employer, carrier, its any interest or the third Ill Ameb. Asbestos Gamble v. might after the has even have, claim party; (4) re- released settled from the third quiring provided; applied and, shall he recovery against finally (5) requiring expenses party, recover- after deduction third ing, applied first to reimburse be *6 for workmen’s its insurance carrier or paid the the balance to it to benefits be employee paid as a or and treated credit to the which would advance employee in the due the future. become otherwise statutory language plain reading of the A above clearly indicate the seem correctness would to hearing appeal holdings referee, board the and Appeals. contends, Plaintiff however, Court the would render construction of mean- that such statutory ingless (a) the authorization for the above as to settle his claim his interest appear party against the third and a execute (b) provision and the that such therefor, release employee and release the shall not settlement compensa- employer the its to action or be bar party. the third We tion There is need to read conflict not so it. no do view two contradiction between these and legislative intent, one for reimbursement. the provisions, of these three would in the enactment employee appear to to to enable the obtain have been recovery beyond the amount can be recov- which and under the statute benefits ered employee, by impossible yet the settle- render prevent employer to its release, ment recovering from paid employee or to the amount be beyond amount of settle- might employee third have which ment Mich 11.2 upon words, In other agree them. between fit to seen first reimburse legislative “shall the term use compensation insur- or its that the intent reveals ance carrier” third permitting object action the act’s bring reimbursement, such about is, first, go employee. any excess thereafter requirement statutory says that the Plaintiff recovery reim- be used to settlement only to carrier refers burse the insurance through judgment its recovery by way and not to judgment action. in such We settlement language whatsoever that in the statute find no permissibly fact, In conclusion. the such leads language shall settle that in the event applied money shall be his claim so provided, coupled with the further in the act provision recovery shall first reim- means carrier, or its insurance burse very converse. *7 says employee may sue,
The statute settle party judgment. with, and release says any The statute also shall be that so provided, applied as therein and thereafter recovery against provides third first reimburse the and its no lawful carrier. We can see alternative to com- pliance express language with the of the statute affirming, as we the decisions below. do, T. M. Kavanagh, Adams, and T. E. Bren-
Black, nan, JJ., concurred C. J. Dethmers, (dissenting). Conceding the J. correct O’Hara, opinion Chief under ness of the Justice’s the inter pretation accorded the statute I am far, thus still impelled phase myself to one to address 113 Gamblb v. Ambr. Asbestos Dissenting by O’Haka, interpretation uniformly which I "believehas been incorrect. In order so to do I must advert to the amendment to the statute made Act No 155, PA adoption Prior to the of this amendment, under circumstances which give a cause of action would rise to in his behalf negligent party, but which was also compensable Michigan under the com workmen’s required pensation remedy act, was to elect which pursue. "Utilization of one excluded the other. provided part: amendment acceptance “The benefits or the proceedings taking ments shall not act pay- to enforce an election of remedies, but * ** injured employee such also to enforce the of such third for dam- ages in accordance with the of this section.”
Concerning liability, of that enforcement act recites: dependents “If the or his representative
personal does not commence such year action within 1 after the occurrence of the personal injury, compensa- then the or its may, period tion insurance carrier within prescribed time for the commencement of actions by in the name of that person statute, enforce the other such person. days Not less than before the commencement of under suit notify, by registered this section, mail at known address, their last the workmen’s injured employee, or or commission, the dependents, his known death, event of his personal representative kin, next of or his known employer ance carrier. right insur- Any party in shall have a interest *8 (Emphasis supplied.) suit.” in said §17.189). (Stat Ann 1960 Rev 1CLS §413.15 Mich O’Hara, Dissenting Opinion by since its enact- been construed section has This say, permissive only. This is to the service ment as legal particular binding effect. of the notice had no Thus to have I believe been construed, what legislative It seems out of the statute. intent is read notify” imports some action to me the words “shall logical only notified. party notified must that the action I can conceive is join to share in in the action or waive his recovery. Except I no reason for the for this see requirement of notice. I
I am well aware that am vulnerable to the appeal. issue was not raised on criticism Certainly this it settled law was not an under the case opinion express my view write this brief issue. I not ought I it the law is but what think to be. what I If cannot forbear this additional observation. amending give legislative intent in the act was to an additional basis recov- for recovery ery, against compensation the credit of the “paid paid” it or to be as been construed thus has recovery. far The real effect is to defeats injured agency workman a constitute collection insurer. This have been think intent but I don’t so. I find present judicially form, in its construed, statute self-defeating. par- totally unworkable and This is ticularly true the workmen’s because department empowered not to be to make seems money-amount permanent specific finding for a long partial disability. For however compensation, draws amount of payable I is first as reimbursement. tort legislature what intended. cannot believe this negligently certainly give did If injured party it not did, recovery. I an additional basis judi- completely hopeful am in error that if I am *9 Gamble v. Amer. Asbestos 1968J By Dissenting Opinion O’Haea, J. position, my expression
dally my position of that acquiescence. avoid provision comparable of the Wisconsin work- provides men’s that after expense recovery (a euphemism attorney’s fees) recovery goes first third to the in- jured employee absolutely. Thereafter the recov- ery employer, is credited to the or his insurer, to compensation payments the extent of made and required payments to be those the balance in the future, and any, injured employee. if over, “payments Until be made” can be ascertained certainty is constituted a trustee period compensation for the duration of the pay- him, ments are made to with the insurer or beneficiary the trust. repeat I that I cannot believe this is what our legislature hopeful If intended. it did, I am wording will review the of the statute.
As to decision in this I case, would hold that the failure of the and insurer to action after notice constituted a waiver of their any part employee’s recovery. J., took no in the decision of this case. Kellt,