 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Royal Insurance Co. v. Roadarmel9/28/2000
APPEAL FROM: Workers' Compensation Court State of Montana The Honorable Mike McCarter, Judge presiding.
Submitted on Briefs: March 16, 2000
1 The Royal Insurance Company ("Royal") initiated this subrogation action against Earl W. Roadarmel ("Roadarmel"), who had been injured in a workers' compensation accident in 1986, and the attorney who prosecuted his claim, Donald E. White ("White"). The Workers' Compensation Court, State of Montana ("the WCC"), granted summary judgment to Royal under the subrogation statute of the Workers' Compensation Act, § 39-71-414, MCA (1985), finding Roadarmel and White (collectively "Appellants") personally liable for Royal's share of third-party proceeds received as a result of litigation against two third parties, the Exxon Corporation and the Great Western Chemical Company. Roadarmel and White appeal the WCC's grant of summary judgment to Royal. We reverse and remand.
2 Appellants contend that the WCC erred in granting summary judgment to Royal. They raise two issues in that regard:
3 I. Whether the WCC erred in concluding that Royal's subrogation action against Roadarmel is not barred by the two-year statute of limitations of § 27-2-211(1)(c), MCA, governing actions based upon a liability created by statute.
4 II. Whether the WCC erred in concluding that the action by Royal against the attorney White is not barred by the three-year statute of limitations of § 72-34-511(1)(a), MCA, governing actions based upon an alleged breach of trust.
FACTUAL AND PROCEDURAL BACKGROUND
5 Roadarmel suffered an industrial injury stemming from chemical exposure in September of 1986 while working as a heavy equipment operator on a highway project in Butte, Montana. Roadarmel filed a workers' compensation claim against his employer, Acme Concrete, which was defended by its insurance carrier, Royal. White represented Roadarmel and the case was tried before the WCC, resulting in a judgment for Roadarmel. The judgment was upheld by this Court in Roadarmel v. Acme Concrete Co. (1989), 237 Mont. 163, 772 P.2d 1259.
6 Roadarmel, represented by White, also filed a third-party action against the Exxon Corporation and the Great Western Chemical Company, alleging strict liability in tort for failure to warn of possible effects of the chemical agent which caused Roadarmel's injuries. Roadarmel, through White, provided notice to Royal, as required by the subrogation standard of § 39-71-414, MCA (1985), that a third-party action was being commenced. Pursuant to the subrogation statute, Roadarmel requested that Royal pay a portion of the costs of the third-party action. Royal agreed to participate in the costs rather than waive 50% of its subrogation rights under § 39-71-414, MCA (1985), and tendered a check for $5,000 towards the costs of the third-party action.
7 On March 10, 1992, at the conclusion of the jury trial in federal district court, White sent notice to Royal advising it of Roadarmel's successful third-party action and of the fact that the third parties had filed an appeal with the Ninth Circuit Court of Appeals. The Ninth Circuit subsequently upheld the verdict. On February 18, 1994, White sent another letter to Royal advising it of the resolution of the third-party appeal. This letter attached copies of the check received from Great Western Chemical and the jury verdict forms; provided a break-down of the actual costs of the third-party action; and requested that Royal determine its subrogation interest in a portion of the third-party proceeds.
8 Royal then independently computed the amount it contended it was owed, and by letters dated April 7 and October 3 of 1994,
Page 1 2 3 4 5 6 7 8 9 10 11 12 Montana Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|