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Tise v. Yates Construction Co.2/5/2002
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
Decedent Aaron G. Tise, Jr., a twenty-four year veteran of the City of Winston-Salem Police Department, was killed in the line of duty when a suspect ran over him with a road grader owned by defendant Yates. Plaintiff Tanya M. Tise, decedent's widow and the executrix of his estate, filed suit against Yates for negligently failing to secure the construction site where the bulldozer was located. Before trial, Yates settled the lawsuit for $500,000. Having paid $172,572 in workers' compensation death benefits to the decedent's estate, the City placed a subrogation lien againstplaintiff's recovery from Yates.
Pursuant to N.C.G.S. § 97-10.2(j), plaintiff filed a motion for determination of the City's subrogation lien amount. A hearing was held on the motion on 30 October 2000 with the Honorable Russell G. Walker, Jr. presiding. In his order striking the subrogation lien, Judge Walker found as follows:
2. [Plaintiff] has received workers' compensation benefits from the City of Winston[-]Salem in the total amount of $172,572. There are no additional or future workers' compensation benefits to be paid[.]
3. . . . [Plaintiff and Yates] have reached a settlement in the amount of $500,000. Plaintiff's net recovery will be reduced by the legal expenses and costs associated with this action.
4. The present value of the economic loss sustained by the plaintiff is $702,572. This does not include other damages which are provided under N.C.G.S. [§] 28A-18-2 [(1999)].
5. The Court, in its discretion, finds and concludes that the amount of the settlement obtained by the plaintiff is inadequate to compensate plaintiff for the loss sustained and to allow the City of Winston-Salem to recover the workers['] compensation lien for benefits paid in this case would be inequitable under the particular facts and circumstances of this case.
The City appealed from this order.
The relevant provision of the workers' compensation statute provides as follows:
n the event that a settlement has been agreed upon by the employee and the third party, either party may apply . . . to determine the subrogation amount. . . . he judge shall determine, in his discretion, the amount, if any, of the employer's lien, whether based on accrued or prospectiveworkers' compensation benefits, and the amount of cost of the third-party litigation to be shared between the employee and employer. The judge shall consider the anticipated amount of prospective compensation the employer or workers' compensation carrier is likely to pay to the employee in the future, the net recovery to plaintiff, the likelihood of the plaintiff prevailing at trial or on appeal, the need for finality in the litigation, and any other factors the court deems just and reasonable, in determining the appropriate amount of the employer's lien. N.C.G.S. § 97-10.2(j) (1999).
The City asserts that Judge Walker abused his discretion in setting aside the subrogation lien, in light of the evidence that Tise's family would recover in excess of $1 million from various sources including decedent's pensions, life insurance policies, and state and federal death benefits. It claims the court had "no good reason" for striking the lien where the evidence shows plaintiff "will be adequately compensated" with the l
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