*1 P. GARY COLLINS, SWANSON KIM SWANSON (fatal), formerly as Kim R. personal representative Swanson, known SWANSON, ESTATE OF GARY P. Appellant f o v. CHAMPION INTERNATIONAL COR Claimant, PORATION, and LIBERTY MUTUAL IN Employer, COMPANY, SURANCE Respondents. Defendants No. 81-229. 1, Dec. Submitted 1981. 9, April Decided 1982.
Rehearing Denied June
1982.
MR. JUSTICE SHEEHY delivered the opinion Court.
This case comes to us on from Workers’ appeal Compen- sation Court, which entered an order determina- affirming tion by the Workers’ Division that Liberty Mutual Insurance Company $24,000 was entitled to out of a $56,250 settlement of that Earn Swanson had received for claims out her arising death of P. Gary husband Swanson. P.
Gary Swanson, an International Champion died in an on Corporation, crash 1976 in the airplane July course of an performing aerial timber cruise for his employer. At accident, the time was for its Champion insured liabilities in- Mutual. The Liberty surer a total amount paid $37,862.75 in benefits to Kim R. Swanson, the surviving in full spouse decedent, satisfac- tion of the Workers’ Compensation obligations Champion Mutual Insurance Liberty Company. in which the decedent P. was airplane Gary Swanson killed was owned by Stockhill Aviation of Stockhill’s Kalispell. *4 insurer, Underwriters, National Aviation Inc. a brought action declaratory judgment contesting On coverage. April 1978, counsel for Kim wrote to Swanson counsel for Liberty 39-71-414(2), “tendering” participation section Mutual asking declaratory judgment further suit, and for MCA, in the against proposed by Liberty participation in a action Mutual liability against products a claim Aircraft, on Cessna through May Liberty its 5, 1978, Mutual, manufacturer. On already participating pointed counsel, that it was out par- declaratory judgment action that it would thereafter by against subsequent ticipate the widow Liberty participate Mutual declined Aviation. Stockhill ground against upon proposed that it had lawsuit Cessna only a remote success. chance of judgment pending, declaratory Kim R. action was
While attorney, through her settled with National Avia- Swanson, Stockhill, for all of her Underwriters, Inc., tion insurer against $56,250. for the between claims Stockhill sum As Swanson, and Kim R. the settlement was allocated Stockhill action, $53,250 to the to the $3,000 survival action. distinguished suit, It not clear in the record that as from against by Aviation, Inc., had been claim, instituted Stockhill Kim R. either on the action or the Swanson survival death action.
Liberty petition Mutual filed before Workers’ Com- asking Liberty pensation to determine Division Division subrogation rights been the settlement that had Mutual’s Liberty by effectuated. The determined that division order Mutual was to a interest out the settle- entitled $24,000. ment of appealed
Kim R. of the Workers’ Swanson decision Compensation Court. Division Kim R. includ- There Swanson contended settlement responsible payment ed third noneconomic the claimant and well as economic losses sustained property of Kim R. such noneconomic losses were the Liberty subject claims of Swanson relying Court, on Fisher Mutual. Workers’ 41, 518 White Pine Sash 164 Mont. v. Missoula Co. *5 Compensation 795,concluded the Workers’ does P.2d that Act portions provide a differentiation between those of the wrongful claims, settlement and survival or allocated death losses, to econimic and noneconomic or to wife and Compensation children. On that the Workers’ af- basis, Court Liberty firmed the division that Mutual was order entitled to $24,000 of from the settlement. duly appealed Kim R. Swanson of the order Workers’ Compensation Court to this Court.
We frame the issue before us thus: of an where death employee employment by in the course of his is caused neglect party employer employees of a other than his or fellow (section MCA) 39-71-412, and the heirs of decedent proceeds judgment receive from settlement or from responsible party, Compensation third does the Workers’ employer por- lien of decedent’s its insurer attach proceeds may represent tion which noneconomic damages to the heirs? carefully for Kim
Counsel R. Swanson has limited the issue to those noneconomic she would have received personal right may part in her which of the settlement. by blush, At first it seem would that this case controlled holding supra. this earlier in Fisher, Court’s There, held we subroga- that the Workers’ Act does not its tion clause differentiate between survival actions and actions death. Therefore, reasoned, this Court all through subject recoveries made either claim action were interest of or the insurer if the death of the decedent arose out or in the course of his employment. presents slightly
The case at bar a facet different than the court faced in Fisher. Here the claimant widow contends squarely that the noneconomic recovered her as a part against of the settlement of both causes of action responsible subject subrogation by third are not employer or its It is a insurer. contention that leads to re- us totality holding examine the of the in Fisher for two reasons: (1) the intrinsic differences in the and effect of sources ac- between survival actions recoveries (2) changes Fisher, and, were not tions discussed subrogation provisions Act require on since Fisher which a the bases reassessment grounded. which Fisher is open look are
We first at the causes of action that in Mon- a tana survivors of death is decedent whose caused negligence of another. One cause of action is the arises “survival” action. It section 27-1-501,MCA, from version Lord Montana Campbell’s By including statute, Act. existing during this of action, cause person tort actions the lifetime survive *6 may pursued against responsible death, and the cause be the by personal representative. 72-3-604, his See section damages may in MCA. recovered the survival through of cause action for in the of the decedent tort earnings injury clude his lost from the time of his to death; present earnings during the pectancy, value of his reasonable ex his life (1965), Dahl
Krohmer v. Mont. 491, 145 402 P.2d expenses by the 979; medical funeral incurred him as a pain of result the tort; reasonable for his suffering, special damages. and other Beeler v. Butte and Lon Copper Development (1910), don Mont. 465,478, 110 Co. 41 P. 528. damages
Note that the of source the the recoverable in personal They survival action are to the in decedent. do not any damages by clude suffered widow, decedent’s children Tierney (1932), or other 72, 86, heirs. Marinkovich v. 93Mont. P.2d 17 96. damages,by Note further the of of such effect judgment
settlement or satisfaction of survival claim. damages belong They Such to decedent’s estate. are sub ject They claims of his creditors. must be in included any computation if to determine inheritance taxes are due from his estate.
Only may personal representative sue for by suffered the decedent in survival actions. Section any 27-1-501, MCA. Neither widow nor other heir has 516
legal right such an pursue action unless as a appointed per- sonal representative. The damages suffered are so personal the decedent that this Court has held that no survival action if exists death is decedent’s instantaneous. Dillon v. Great Northern Co. Mont. Ry. 485, 502, P. 960, 966. Reason: the cause of action must have existed the lifetime of the decedent to survive him under the survival statute.
The distribution by personal representative of damages in a recovered survival action is controlled the law of by pro- bate. After payment creditors, expenses administration and inheritance if taxes, any, personal representative distributes damage proceeds as part estate of the decedent, controlled by his will or laws intestate succession.
Since subrogation clause of the Workers’ Compensa tion Act refers to the personal section representative, 39-71-414,MCA, it is clear that the cause embraced the survival proviso 27-1-501, section MCA, is subject employer’s subrogation rights under 37-71-414, MCA. or his insurer is in effect and this statute a super creditor of the estate of the decedent, a claim having prior other creditor any of the decedent or tax to that agency por tion of the decedent’s estate included the employer’s subrogation rights. Especially claim comes before heir’s distribution of the recovered estate.
We must be conscious, however, of the the point damages recovered the by in personal the sur- representative vival action may include economic and noneconomic items. In addition to medical costs, funeral expenses, and wage-loss damages, the pain, suffering, of the dece- disfigurement dent have may been compensated, Beeler, supra, and even punitive damages awarded. Nonetheless, the subrogation clause is clear. The or his insurer is entitled personal without representative regard to the nature of the damages which the decedent through his estate is compensated survival action. Section 39-71-414(1), MCA. Thus we are in with agreement far the holding Fisher. nature, let us examine the and effect of source,
Now recoverable under the death” statute. damages “wrongful of section for the 27-1-513, MCA, virtue cause By (for one death of not minor the death of a wrongful wrongful same) minor, MCA; see section 27-1-512, result created and vests the heirs the decedent. The cause of ac- tion be may prosecuted by personal representative by 27-1-513, heirs. Section MCA. about the source
The law is not in a specific damages death action. It wrongful provides “damages may all given under of the circumstances case bemay just.” Section 27-1-323, MCA. Generally proof damages this cause of action will include loss of consortium aby spouse, Mize v. Mountain Bell Rocky Co. Telephone (1909), 38 Mont. 521, 535, 100 P. 971, 974; loss of comfort and of the society decedent suffered by heirs; and the reasonable surviving value of the contributions money decedent would have made for the reasonably support, education, training care of the heirs during life respective of the expectancies v. decedent and survivors. Hennessey Burlington Transp. (U.S.D.C.
Co. Dist. Mont. 1950), 103 660, 665. No F.Supp. pecuniary specific loss need be shown. Waltee v. Petrolane, Inc. (1973), Mont. 317, 975, 511 P.2d 978. that the source of the damages recoverable again
Note in a death action is personal the survivors of the decedent. The are damages not those of the decedent, but of the heirs reason of his by death. The action bemay prosecuted without regard whether the decedent’s death was instantaneous.
Again note further the of the effect in a death cause of action settlement or by satisfactory judgment. Such do not belong decedent’s estate. are not to the They claims of dece subject dent’s creditors. are not a They part estate for determination of inheritance taxes. per They pertain sonal loss of the survivors. Though personal represen decedent, tative of the statute, under the wrongful may sue the responsible party, any recovery made personal
518 capaci wrongful
representative claimis not in his death moneys ty personal representative. a He is trustee as Copper person the Butte Co. for entitled. Batchoff v. Pacific (1921), 179, 183-184, P. 134. 60 Mont. wrongful prosecuted, is the When a death action by general covering damages all of the verdict, are returned ascribing duty jury given is the so heirs involved. not the to one to another. trial Rather, much heir and so much allocating given verdict, after is the task the court, the money damages among the rel. v. heirs. State ex Carroll 367, 372, 739, 741. District Court 139 Mont. 364 P.2d damages the heirs not The distribution of the to is controlled by by the decedent’s will or the laws of intestate succession.
This examine the Court has never had occasion to wrongful in a action as economic recoverable death say? damages will or noneconomicin nature. Who is to Such pro usually counsel, the on such factors as loss of founded guidance society decedent, the tection, aid, comfort, the by reasonable consortium, loss of loss survivors of support, opportunity contributions, for education training support The loss of or education is decedent. per earnings decedent, not measured the lost future wrongful although proof earnings necessary of such is se, needs Rather, actions. it is measured terms of the death reasonably supplied the heirs which the decedent have would the heirs to had he lived. wrongful
In death event, recoverable a personal are so heirs clause to Act must be of the Workers’ stretched extent intent of the fullest to include them. obvious wrongful recovery provide to losses for statute might Campbell’s for heirs other- Act, covered who Lord especially personal if loss, have no for their wise were The heirs were not death of parties decedent instantaneous. employment between the existed contract employee-decedent. com- To and the construe including damages ap- pensation clause as per- pointed lessen under the death statute the heirs of of heirs of rights employees compared sonal There exists in this con- light decedents. noncompensated flict on one hand, between death statutes seek provide heirs, which succor and the subrogation *9 clause on the which other, seeks to invade that succor.
Then there is of the nature itself. has its in “Subrogation” root the latín to “subrogare”, pray or through. under It is the right one who has what paid another have to the should recover paid payment Skauge v. Tel. Mountain States & justly responsible. Tel. Co. 521, 172 Mont. 524, 628, 565 P.2d 630. Compen (1) sation are of funeral ex payments two kinds: for medical or (2) incurred, and, in lieu of These penses wages. are payments the items of as we that damages, above, have shown are the recoverable in estate decedent’s the survival ac through (It tion. true, that burial however, medical and can expenses action.) be reimbursed the It is in the through wrongful death survival action that “the party justly responsible” ordinarily makes for the recompense expenses incurred and lost wages to the It is that decedent. there the the rights the employer, nature of by subrogation should reach.
We have that factor, said there is another in at looking Fisher, that we should consider: the in namely, changes time of Fisher to subrogation clauses as they existed at clauses now at case bar. apply effect when Fisher was decided was section in statute 92-204, 1947. R.C.M. With to respect subrogation, it provided in pertinent part:
‘“...In the event said shall an employee action prosecute for for or on account of such injuries received, so he shall be of his deprived right to receive but compensation such shall him in to compensation be received addition and by his independent to action such bring damages, pro- employee, or in his death, said case of vided, that event personal representative, action, such shall then the bring or insurance carrier employer such shall paying compensation (1/2) to the extent subrogated only of either one-half amount at time of the amount gross paid bringing such employee to be awarded eventually compensation (1/2) law, the workmen’s or one-half under of, amount recovered and to such settlement paid employee the lesser amount. action, or said whichever is by judgment All such action shall be borne expense prosecuting shall such action or employee or if the employee, bring fail (6) make settlement of his cause action within six months in- received, from time such injury surance carrier thereafter who such pays compensation may such action and thus become all of the bring entitled to of such action amount received from the prosecution up amount paid employee Workmen’s Compensa- all paid Act, tion over amount shall be (Em- 41, 46-47, 795, . . .’” 164 Mont. 518 P.2d 798. added.) phasis 92-204, R.C.M. amended section
The legislature into several statute wandering up breaking complex of our is that parts The result pertinent components. *10 are as follows: to this case statutes as they apply other than or third Liability party employer “39-71-412. action. cause employee fellow —additional while occurs to an employee per- “... Whenever such event is caused of his and such event the duties forming employment other or the act or omission of some persons corporations than his or the servants or employees employer heirs or per- or in case of his death his the employee employer, to receive shall, in to the right addition sonal representative a right prosecute this have chapter, under such damages against per- he have for may cause of action or corporations.” sons
(( (1) If an action is as prosecuted pro-
“39-71-414. Subrogation. otherwise 39-71-413, as except for or vided in'39-71-412 to subrogation the is entitled section, in this insurer provided to be benefits or paid paid for all compensation subroga- Act. The insurers Workers’ Compensation recovery. or claim, judgment, lien on tion is first “(2)(a) injured employee If the intends to institute the third give party he the insurer reasonable notice of his action, shall to institute the intention action.
“(b) injured employee may request pay insurer proportionate action, share of the reasonable cost of the in- cluding attorneys’ fees.
“(c) may participate elect not insurer cost of If made, action. this election is insurer waives 50% subrogation rights granted by its this section.
“(d) injured employee employee’s personal If the or the representative employee action, institutes the is entitled by judgment to at least of the amount one-third recovered or proportionate settlement less a share of reasonable in- costs, cluding attorneys’ if fees, the amount of is insuffi- provide employee payment cient to with that amount after subrogation. “(3) injured employee If an refuses or fails institute party year injury, third action within 1 from the date of the in- may employee surer institute the action in the name of the employee’s employee’s personal for the benefit or representative. pay If the insurer institutes the action, it shall employee any by judgment amount received or settle- paid paid ment which inis excess of the amounts or to be under the Act after the insurer’s including attorneys’ prosecuting costs, reasonable fees for recovery.” action, have been deducted from the Especially pertinent foregoing to our discussion here is the provision 39-71-414(3), injured of section that if MCA, refuses or fails to institute third action, may employee’s the insurer institute it benefit of “the personal representative.” No mention is in that made statute of an action “for the benefit of the The statute heirs.” could giving not construed its insurer *11 to institute a death true, action. While it is as pointed personal representative we have may out above, that a rights sue for the death of the heirs, personal representative nonetheless if made, proceeds, personal representative, holds those not as a as but 522 Batchoff,
a trustee of the the benefit for heirs. moneys supra.
More is the that was made the 1977 change important Montana of the that relate Legislature provisions pro of the tection of employer through exclusivity Fisher, Act. In this Workers’ Court Compensation placed reliance former section 92-204, on R.C.M. great part 1947, stated, which “and in case of shall his per death bind sonal and all or claim having any right representative, persons to his or that the death”, as compensation injury meaning the subrogation heirs were recovery rights subject of the Mont. at P.2d at 797. rights employer. this 1977 amendment removed language 92-204, of former section and established subrogation portions exclusivity statute which related to the separate The intent of Workers’ Act as to the Compensation employer. heirs were bound as but legislature exclusivity not now as is now more clear. That statute reads: — chapter remedy Provisions exclusive “39-71-411.
nonliability employer. For all insured employments Act or for which covered under Workers’ Compensation an election has been made for under this coverage chapter, are exclusive. as of this chapter Except provided provisions as except 5 of this for uninsured and chapter employers part an Act, otherwise in the Workers’ Compensation provided for the whatever liability employer subject any to an covered Workers’ of or personal injury employee or indem- Act or for claims for contribution are a third from whom asserted nity person or death. injuries on account of such sought himself, and case Act binds the all having his representative persons death binds personal death, or claim to for his injury or any right of such and the servants employees well as employer business during liquida- those conducting tion, insolvency.” bankruptcy,
523 foregoing the study that will demonstrate the statute A having any right persons claimto or “all inclusion of words injury those intended to bind or death” is for his parties. against employer, persons In not third as to suits respect any language to with reference to this context, that succeeding subrogation rights to take the in the statutes is subject language away quoted from the out of context and pertain. language ex- relates to it is intended to which statutory clusivity; present it not be scheme, should subrogation construed to include Workers’ subrogation provisions provisions, present for in none of the legislature to include there intended indication rights employer’s within the lien. of heirs present statutory therefore that under the We conclude applies as it to this and because of the intrinsic scheme, case, always differences that exist now and have existed/in effect of made in survival actions as source and distinguished recoveries actions,
from rights employer or its insurer under the Workers’ Com- pensation Act do extend to recoveries made under distinguish Fisher extent, death claims. To we (1974), v. Missoula White Pine Sash Co. 164 Mont.
P.2d 795. respect subrogation rights
Decisions of other states
with
employer
helpful.
variety
carrier are not
or its
background
opinion statutory
from state to
shades
differ
subrogation rights
say
recognizing
it to
that in
state. Suffice
regardless
extending
by dependents,
as
benefits received
following
appear
the nature of the
we
to be
the trend of
action,
majority
special
of the decisions in the United States. Of
recognized
point
fact that in
it is
interest on this
is the
Utah
nondependent
provisions,
that because of state constitutional
against
rights
are
of their
as
heirs
not divested
subrogating
Inc.
Corners,
carriers.
v.
Oliveras Caribou-Four
(Utah 1979),
provided
it is
statute
Idaho,
We out above that in a action, survival the lost wages injury between the date of the the death, and the *13 (reduced value) earnings present future that the decedent might during expectancy proper have earned his life are damages. pointed elements of We have also out that in wrongful determining damages actions, death in “such ... as (section may just” under all the circumstances of the case MCA), jury may 27-1-323, in include as factor such damages money the reasonable value in contributions reasonably during would deceased have made support, training lifetime for the education, care of the during respective expectancies. heirs their life
It is obvious that the contributions which decedent might support, have to his for their made heirs maintenance, training earnings during education or would come out of his wrongful his lifetime. While it is true that survival actions and separate death are actions and distinct causes of action recovery earnings that of lost in the survival or the action, wrongful value of in action, contributions are each death proper respective factors for in determination those it cases, Compensation is true also that in Workers’ cases where a represent death is involved, heirs receive benefits that wages employee that would have he received had lived. subroga equity Under considerations of and the doctrine of apart statutory provisions, tion, therefore, from the it is meet just in cases of instantaneous death that por lien of the or its insurer should extend to that recovery tion of the claim made under death may represent reasonable contributions heirs derived earnings of the decedent. Where the death of the is no instantaneous, exists recovery survival action. If is made recovery nonetheless the claim, of the and no phase under the possible action, survival the Workers’ Compensation Court should determine of the value economic in the settlement damages or the By judgment. “economic damages” we refer to those elements of a wrongful death case that would have their source the ear- of the nings decedent, and recompensed medical and burial ex- penses paid partly wholly by subrogating carrier. Once portion the wrongful death settlement or judgment determined, the Workers’ Court should apply carriers’ subrogating to the economic rights received by heirs in the dependent usual fashion.
Whether the Workers’ Compensation Court allows subroga- tion out of survival proceeds, or out of wrongful death pro- ceeds, attorneys fees and costs would, in the absence of circumstances requiring otherwise, be allocated be- pro-rata tween the subrogated and the portion remaining portion the whole settlement. order Court in this case
should take the following form:
(1) Amount of third party action recovery $56,250.00 (2) fees Attorneys’ and costs 20,250.00 *14 (3) Amount of recovery allocated to survival (in instantaneous death write _
“none”) $ (4) Amount of recovery wrongful death
allocation determined to represent (use economic damages if figure only death were instantaneous, otherwise “none”) enter $ (5) Amount of recovery subject to
employer/carrier’s subrogation rights (enter (3) (4)) figure from or $ (6) Attorneys costs allocable to fees and i~(5) (2)"l
subrogation rights X Ld) J (7) determining propor- Factor to be used in attorneys
tion of fees and costs to [(6)/(5)] assumed insurer claimant % (8) statutory Claimants minimum entitle- excluding proportionate
ment share of [(5) attorneys 1/3] fees and costs x (9) statutory Insurer’s maximum entitle- excluding proportionate
ment share [(5) attorneys 2/3] fees and costs x (10) payments $37,862.75 Insurer’s total to date (11) portion attorneys Insurer’s to date [(7)% (6)] obligation
fees and cost x (12) portion Net insurer is to from entitled party recovery payments
third [(9) made - (10) (11),or whichever is the lesser]
In the settlement of this for the case, counsel heirs Underwriters, decedent and counsel for National Aviation themselves, $3,000 between allocated the sum to the sur action, vival and the of the settlement remainder considered, death action. When neither the court nor the Workers’ Court or Division should be bound so allocations made between private proper counsel. it here We find that Workers’ consider, Court be directed to in the absence of a District determination, Court all of the elements that went apportion into at, the settlement therefrom arrived portion represents of the settlement settlement value of the survival if the in action, decedent’s death was not stantaneous. If his then the entire instantaneous, death was regarded settlement should be as a accordingly. and the economic allocated *15 Compensation judgment of the Workers’ The order and denying Kim to determine the motion of R. Swanson Court noneconomicelements of the settlement for the economicand subrogation hereby purposes the cause is is vacated and to the Workers’ Court with instruc- remanded hearings, findings, enter tions to and to make and its conduct determining subrogation rights and conclusions order employer guidance or its insurer based on of this opinion. DALY, HARRISON, WEBER,
JUSTICES SHEA (sitting Morrison), JUDGE PETER G. MELOY Justice concur. dissenting:
MR. CHIEF HASWELL JUSTICE my view, I In our decision in Fisher v. dissent. Missoula 795, Pine and 164 Mont. 518 P.2d White Sash Co. Compensa- mandates affirmance of the order of the Workers’ tion Court. majority subrogation rights of the hold that
employer wrongful and insurer do not extend to recovery by employee against heirs of deceased a third party. support holding I find no for this in the 39-71-414, statute of the Workers’ Act. Section holding directly contrary Moreover, MCA. such is to our deci- sion Fisher.
In Fisher we held that the distinction between survival and preserved neither nor death actions was differen- subrogation provisions tiated under the pensation of the Workers’ Com- support Act; that such distinction finds no statutory plan purpose compensatory Act; of the purpose provision remains the same paid benefits are or in whether accordingly surviving dependents; case of death to his subrogated employer portion to that of a and insurer compromise settlement that the widow received from a third in a tortfeasor death action. from Fisher illustrate rationale: following its passages
“Claimant
contends
any subrogation
or its insurer
possesses
statutory
*16
purely
section
of the
92-204,
1947,
R.C.M.
Montana Workmen’s Com
argues
that this
She
statute
Act.
pensation
grants
subrogation
and has no
on derivative claims of the
only
injured
employee
application
urrongful
to
death actions
claims
involving
for
added.)
suffered
survivors.”
164
(Emphasis
Mont. at 44-45,
U
“We reject
such construction as inconsistent with the
statutory
and
plan
purpose
Workmen’s Compensation
Act. The
of the
purpose
subrogation
provisions
compen
sate the
and his insurer to some extent for the
addi
tional
assume
liability they
under the Workmen’s Compensa
tion Act for
wrongful acts
independent
third
tort
Koppang
v.
Sevier,
feasors.
101
234,
Mont.
U
“Accordingly,
claimed distinction between subrogation
in
rights
survival actions and
death
wrongful
actions finds no
in the
or
support
statutory
of the
plan
purpose
Workmen’s
Act.” 164
at
Compensation
48,
Mont.
In
reasoning
in the Act
statutory changes
a different result in this
require
case, the
ignore our
majority
Tuttle v.
Co.,
Morrison-Knudsen
Inc.
in
decision
Mont.
“The statute under consideration subrogation statute in [the the Workers’ was amended in 1977. The Act] amendments cleared simply up language statute They did not make and divided it into two sections. change in substantive the statute.” (Emphasis added.) then at majority explain length difference between the. survival actions and death actions economic damages. agree these I dif- and noneconomic legislature agree intended exist. I ferences do incorporate in the Workers’ these differences deny recoveries Act and against persons. third controlling provides pertinent part: statute (1) prosecuted pro- Subrogation. If an action is
“39-71-414. against party] [tort third vided for 39-71-412 against [action for intentional and 39-71-413 fellow except provided acts] in this sec- as otherwise malicious compensation all the insurer is entitled to tion, Compensa- paid paid and benefits or to under Workers’ added.) (Emphasis Act.” tion
Here and benefits under Workers’ Com- paid surviving pensation widow. Act were She presented against party, a tort claim a third Stockhill Avia- language paid plain $56,250. her tion, who Under *17 quoted en- above, Act the Workers’ insurer is paid. titled all and benefits No is made between survival and distinction prolonged actions, between instantaneous and death or be- damages. tween economic and noneconomic engaged judicial legisla- majority simply have in some they process they justify tion to seek. In the have result ignored effect to Fisher and have Tuttle. denied