*1 426 P.2d 223 WORTHEN,

Bruce T. Plaintiff Respondent, ANDREWS, INC.,

SHURTLEFF AND corporation, Defendant, Department Finance, Successor Finance, Commission of Administrator of Fund, the State Insurance Intervenor and Appellant.

No. 10651.

Supreme of Utah. Court

April 3, 1967.

covery be disbursed and to show required why cause, it shouldn’t be to bear share, $10,667.44 e., i. one-fourth of its reimbursement, plain- for the benefit of recovery. attorney making for such tiff’s City, ap- for Moore, Lake Salt Robert D. question as to the allocation of the pellant. recovered from third (cid:127) upon interpretation applica- hinges City, Garrett, Lake M. Salt Edward 35-1-62, given U.C.A. tion to Section respondent. 1953: * **

CROCKETT, any injury Chief or death 1. When Justice: n wrong- shall been caused have Insurance appeal by The State This is an neglect person ful act or of another pay its requiring it to from an order Fimd employment, the in- the same proportionate of costs * * * jured employee, may claim by plaintiff, Bruce T. fees incurred .Wor- * * * compensation may also then, obtaining against defend- damages against have an action for *3 Andrews, Inc., ant, and Shurtleff * * * person. such If third the and the Insurance benefits Worthen both employer be- or insurance carrier Fund. obligated pay compensation, comes to the purpose considering the of issue For *** may bring main- and [he] regarded presented, here the facts can be name tain the action either in own : 2, 1964, plaintiff thus: On December the injured or in the of the em- name injured the of his in course Worthen was * * * ployee, employment H. Milk Co. He for F. Lowder any recovery against If is obtained expenses and workmen’s received medical person third it shall disbursed such be compensation $10,667.44 totaling from The as follows: State Insurance Fund. Meanwhile he em- (1) expense The reasonable of the attorney, Garrett, ployed his Mr. E. M. on action, attorneys’ fees, including shall contingent a fee and sued one-fourth basis paid proportionately charged be and in negligence Shurtleff and for Andrews against parties the as their interests causing injuries. At the trial his time of n mayappear! jury and before the the submission to case $60,000.00. person compen- (2) was for The The liable for settled defendant payments was then into the sation shall be Insurance Fund ordered reimbursed payments full a as to how that in for all made. for' determination re-

8a paid (or employer) pays the him work- surer who be to (3) The balance shall respect compensation, in a cause case men's to employee his heirs injured or injures, against party of reduce or action a third applied to death, to be of .who employee. preserves the any there- It action to- obligation the satisfy full in prevents person employee, lia- the but it from the him accruing against after having recovery requiring double him compensation. ble for gives to the It reimburse insurer. also the difficulty confronted here action, right bring insurer the to the paragraphs if because arises only then: allows it to reimburse itself and literally, each separately and are read above pay employee. any balance the to they other, the of excluding consideration (1) is the parties If directive conflict. the has the in Where each of are takes; be shall expenses the right to action2 and one followed: the interests parties their against the charged recovery the initiative and obtains (2), directive appear, both, only then the the it is that each benefit fair compensation paying the necessarily expenses the insurer bear his cannot in full” be reimbursed doing “shall in mean incurred so. That this is the the insurer Conversely, if complied with. paragraph (1) in unmis intended seems full,” it then is providing is “reimbursed takably clear. In that if pro expenses as the charged its share ex against third the is obtained the is there (1). Where penses including attorney’s vided shall be fees of statutes provisions the parties conflict in “proportionately against such charged emphasis place all of improper to may appear,” it is to be it as their interests provision to the exclusion either apply on noted those terms could not together be considered They parties (plaintiff original other. two action into the back proper to examine it is An and defendánt Worthen Shurtleff as to the lan purpose as ground and well because drews) Worthen receives guage Andrews, statute to discover money from who’ Shurtleff paying have further interest in it after no legislative which should intent was as to “par-' Therefore, only possible it over. priority.1 have ties” have in the who “interests” *4 purpose The of this statute basic Fund! are and The Insurance Worthen State equitable arrangement that an making is of reimbursement.) (the being latter entitled to unmis (1), It injured an and in- thus follows that Sec. employee, between an Co., Comm., Rogalski Phillips 2. 1. Tax 98 v. Petroleum See Norville v. State See 203, 170, 937, 2d P.2d 304. P.2d A.L.R. 3 282 Utah 126 1318. Utah 97 remaining possible clarity requires expenses that the the funds and to extent takable charged propor requirement the first attorney’s fees be after for disbursement and complied tionately against “parties” application is with. This (Worthen these require- Fund) as their statute can be reconciled with and The State Insurance the appear. It is reasonable ment that the “reimbursed in “interests” more insurer be full, by phrase Legislature regarding simply that mean- to assume that the intended this comports application the reimbursement for its full share after statute which prior requirement equitable purpose than which of the statute is ful- with its one filled, contrary and that the insurer be com- would about a result.3 cannot

pelled proportionate to take than less its equitable In addition to the result any compromise share in ar- or settlement by giving priority paragraph at arrived ranged by others. above, as we have discussed there is an defendant, persuasive Insurance sup

other The State consideration which Fund, ports presents point argument another conclusion. a statute un When funds, comment: That inasmuch dertakes an deserves allocation of the se attorney quence plaintiff’s as it not did hire which it does so should be re contract, garded party is not a that it having significance. to the to hold as some This it perhaps is bound to that is to leave at the plainer would be contract if the statute had mercy parties stated that over whom it has no con the funds recovered should be “first,” That it not a contract “second,” disbursed trol. to the and “third.” token, However, by must be conceded. But the same thereby the intent shown is not thereby. it necessarily obligation is not bound Its de different priority from the from the requiring rives statute it to bear allocation which would be indicated expenses “the using share of reasonable (1), (2), (3). numerals If action, including attorneys’ fees.” And says we do as statute and make the al with, chargeable regardless is all it is provided location first, may parties the other contract for. is, charging with the costs approved In instant the trial court proportion fees in contingent the one-fourth fee reasonable. parties, interests of the the disbursement first, priority stated first is made has cognizant concluded of Mc We have so provision over the for disbursement which Finance, Connell Commission of 13 Utah v. it in Then re (2). follows 395, 394, insurance 2d 375 P.2d in which the in so party, made carrier imbursement to the insurer is from was made Steele, Co. Realty 468, 3. P.2d 558. See Local 90 Utah *5 HENRIOD, (dissenting). with inconsistent may be as case far this Justice Con is overruled. that case McConnell, prefer I dissent. I stick to with de here, holding see Charles sistent our with cision in McConnell Commission Fin (Ky.), v. Brown Seligman Distributing Co. ance,1 which in was concurred unanimous 509, 511. 360 S.W.2d ly, participating. the author of this have discussed we The considerations opinion The main the Mc- now reverses equitable about an .above and which gratuitous Connell case words that with conformity we believe result in unmistakably “paragraph (1) clear.” seems statute im- be intent to the overall years ago, McConnell, Four did in we not persuasive than the press being more us as clarity. share such It is unmistakable now argument (cid:127)defendant’s everything said that in the statute should in insurer to be “reimbursed requiring the together be equity, except read effect to literally, full” be taken jn reading you together them lend im- n exclusion paragraph which preceding portance chronological to in each section interest parties having an requires pro- order, per per my. have their tout non recovered et re- costs portionate only versal now the McConnell case provided in fees deducted as years four vintage, case seems to them allocated to remainder is before the may sensible, me to be as commendable Ac- (3). provided paragraphs (2) candor, disturbing bit to a wee in favor of judgment cordingly, lawyers have to advise down town who (re- plaintiff Costs plaintiff affirmed. their clients. spondent). CALLISTER, J., concurs in dissent- H. TUCKETT, J., BRYANT n CROFT, HENRIOD, opinion concur. Judge, District J. 395, P.2d

1. 2d 394. 13 Utah