Opinion
No. 4357.
Argued November 3, 1954.
Decided December 15, 1954.
The lien provided by the workmen's compensation law (Laws 1947, c. 266, s. 12, as amended by Laws 1949, c. 160) in favor of an employer does not attach to the proceeds of recovery or settlement of an action by the administrator of the employee against third persons to recover damages arising out of the employee's death.
The settlement of common-law actions in fatal injury cases does not require the approval of either the Court or the Commissioner of Labor and the proceeds less the statutory expenses are to be distributed in accordance with R. L., c. 355, s. 14.
ACTIONS OF CASE, by Karl E. Dowd and John D. Warren, co-administrators, to recover damages arising out of the death of their intestate, Joseph E. Farland, who was fatally injured on July 14, 1951, in an automobile accident which occurred while he was directing traffic in the course of his employment by Textron, Inc., a party defendant. The defendants Moore and Deslauriers were the operators of automobiles alleged to have been involved in the accident. Following a pretrial hearing, the actions were settled by agreements which provided for judgment against Deslauriers in the sum of $500 and against Moore in the sum of $4,750.
Pursuant to a decree entered on a petition for workmen's compensation brought by the decedent's widow, the defendant American Mutual Liability Insurance Company, insurer of the defendant Textron, Inc., paid to the widow the sum of $4,500. Textron, Inc. and its insurer now claim a lien under the provisions of the workmen's compensation law upon the proceeds of settlement of the law actions upon approval of the settlements by the Superior Court or Commissioner of Labor. In agreeing to the docket markings in the law actions these defendants reserved their rights to question the jurisdiction of the Superior Court to approve the settlements.
Robert E. Farland, by his guardian Harold R. Gurley, claims to be a minor son of the decedent, and in the petition for workmen's compensation to which the defendants Textron, Inc. and its insurer were parties defendant, Farland was found to be a minor son of the decedent, but not a dependent so as to be entitled to benefits under the workmen's compensation law.
The plaintiff administrators, the decedent's widow, and Gurley as guardian of Robert E. Farland, deny that any lien attaches to the proceeds of settlement; and the guardian further contends that if such a lien does arise, it does not extend to his ward's distributive share of the proceeds.
The Court (Grimes, J.) transferred without ruling the questions of whether the employer has a lien upon the proceeds of the settlements and, if so, whether it extends to the distributive share, if any, of Robert E. Farland; and the further question of whether the Court has jurisdiction to approve the settlements and make orders to insure payment to the employer of the amount of any lien on the proceeds, or whether such jurisdiction is vested in the Commissioner of Labor.
Subject to the exception of the employer, the Court ruled that its lien, if any, attaches to the proceeds only after deduction of the reasonable costs and expenses including counsel fees. The Court further ruled, subject to exception of the employer and its insurer, that the decision in the petition for workmen's compensation brought on behalf of Robert E. Farland is res judicata of the issue of whether he is a minor son of the decedent. The questions of law raised by these exceptions were also reserved and transferred by the Presiding Justice. Because the issues relating to the lien of the employer upon the proceeds of settlement of the law actions are similar to the issue transferred in Gagne v. Greenhouses, 99 N.H. 292, the cases were argued together in this court.
Karl E. Dowd and John D. Warren (Mr. Warren orally), as administrators, pro se.
Paul E. Nourie for the defendant Moore, furnished no brief.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Booth orally), for the defendant Deslauriers.
Sullivan Gregg and Joseph M. Kerrigan (Mr. Kerrigan orally), for the defendants Textron, Inc. and American Mutual Liability Insurance Company.
Frederic J. Grady and John B. Ford (Mr. Ford orally), for the defendant guardian.
Clancy O'Neill for the defendant Eva Farland.
The questions transferred without ruling are controlled by the decision in Gagne v. Greenhouses, 99 N.H. 292, argued and considered with this case and decided this day. The lien provided by Laws 1947, c. 266, s. 12, as amended by Laws 1949, c. 160, in favor of an employer does not attach to the proceeds of recovery or settlement of an action by the administrator of the employee against third persons to recover damages arising out of the employee's death. Settlement of such an action does not require the approval of either the Court or the Commissioner of Labor as provided by the same section.
It follows that the employer in this case has no lien upon the proceeds of the settlements of the law actions, or upon any share of Robert E. Farland in the balance thereof available for distribution under R. L., c. 355, s. 14. Neither the Court nor the Commissioner has jurisdiction to approve the settlements or to order any part of the proceeds thereof paid to the defendant Textron, Inc. or its insurer. The proceeds are to be distributed in accordance with R. L., c. 355, s. 14, after payment of the expenses requiring approval by the probate court, including such counsel fees as are properly "expenses of recovery."
Since section 12 of the Workmen's Compensation Law is inapplicable, questions raised by certain of the parties with respect to constitutionality of the section require no consideration. This is likewise true of the issues presented by the exceptions of the employer and its insurer to the rulings of the Trial Court.
Remanded.
All concurred.