The employer must either give written consent or be `fully indemnified or protected by court order.' The reason the legislature required written consent as one alternative is obvious. Because settlement serves as a bar to further recovery against the third party, State v. Mileff, 520 N.E.2d 123, 126 (Ind.Ct.App. 1988), without a consent requirement, an employee could settle a lawsuit for an amount well below medical and disability costs and leave the employer with nowhere to turn for the additional money owed. Requiring the written consent of the employer is designed to protect an employer from being shortchanged without its advance approval.Koval v. Simon Telelect, Inc., 693 N.E.2d 1299, 1309 (Ind. 1998).
Because the trial court's order on the motions is a general order, we have "a duty to sustain the action of the trial court if it can be done on any legal ground on the record." State v. Mileff (1988) 4th Dist.Ind. App., 520 N.E.2d 123, 125.
It is well settled that the State and its agencies are not liable for ordinary court costs and fees. State v. Mileff (1988) 4th Dist.Ind. App., 520 N.E.2d 123; Ex parte Fitzpatrick (1909) 171 Ind. 557, 86 N.E. 964; I.C. 33-17-3-10 (Burns Code Ed.Supp. 1986) (current version at I.C. 33-19-3-1 (Burns Code Ed.Supp. 1988)). The trial court therefore erred in assessing costs against the State.
[Dkt. 41-3 at 1, 6.] Indiana law permits the acquisition of property subject to possessory lien. See State v. Mileff, 520 N.E.2d 123, 128 (Ind. Ct. App. 1988) (valid lien on personal property may be enforced against subsequent purchaser with notice of the lien). Therefore, the Court must determine whether PDM's lien on the Racecar is valid such that WCG's purchase of the Racecar is subject to it.
For at least twenty years the Court of Appeals has held that if an employee settles with a third party without first obtaining employer's consent, the employer's sole avenue for reimbursement of worker's compensation payments is through the employee, and the employer may not continue to pursue the third party. State v. Mileff, 520 N.E.2d 123 (Ind.Ct.App. 1988). Although some other jurisdictions do not adhere to the same interpretation of similar provisions, the Court of Appeals, citing the interest of finality from the point of view of the third party, has long held that once an employee releases the third party from liability related to the injury-causing accident, the employer may not continue to pursue the third party.
The reason the legislature required written consent as one alternative is obvious. Because settlement serves as a bar to further recovery against the third party, State v. Mileff, 520 N.E.2d 123, 126 (Ind. Ct. App. 1988), without a consent requirement, an employee could settle a lawsuit for an amount well below medical and disability costs and leave the employer with nowhere to turn for the additional money owed. Requiring the written consent of the employer is designed to protect an employer from being shortchanged without its advance approval.
We decline to excuse the lack of timely objection despite the defendants' argument that a reviewing court is bound to affirm a trial court's grant of summary judgment if sustainable on any theory or basis found in the record. Havert v. Caldwell (1983), Ind., 452 N.E.2d 154; State v. Mileff (1988), Ind. App., 520 N.E.2d 123; Gorski v. Deering (1984), Ind. App., 465 N.E.2d 759. We prefer the general rule applied in the federal courts interpreting the analogous Fed.R.Civ.P. 56. Waiver will result if timely objection to documents or exhibits is not raised at the trial court.
These policy considerations are especially compelling in light of long-standing precedent that "if an employee settles with a third party without first obtaining employer's consent, the employer's sole avenue for reimbursement of worker's compensation payments is through the employee, and the employer may not continue to pursue the third party." Id. at 368 (citing State v. Mileff, 520 N.E.2d 123 (Ind.Ct. App. 1988)). Although this rule does serve the interest of finality from the point of view of the third party, id., it can have the effect of working great injustice on the employer.
With regards to the stock transferred by Julia, "[a] valid lien created on real or personal property is enforceable against the property in the hands of any person with notice of the lien who subsequently acquires it." State v. Mileff, 520 N.E.2d 123, 128 (Ind.Ct.App. 1988); see also Aurora Nat'l Bank v. Black, 129 Ind. 595, 29 N.E. 396, 398 (1891) ("All who acquired title to such property, or liens upon it, acquired such title or lien subject to the prior and superior liens of those to whom wages were due."); Keim v. Myers, 44 Ind.App. 299, 89 N.E. 373, 374 (1909) (where a creditor had a lien on a crop to secure the payment of rent, "until this rent was paid the appellant had no right to remove from the premises the corn and oats upon which the statute specifically created a lien in favor of the appellee thereon to secure said rent"). Constance also points out that the statute refers to the "trustee's individual property," and that some of the property involved in the security agreement and in the mortgage may be marital property or property belonging solely to Daniel.
Contrary to Banks' contention, the cases establishing this rule have nothing to do with the application of the Trial Rules, but are grounded in public policy. See State v. Mileff 520 N.E.2d 123, 128-29 (Ind.Ct.App. 1988) ("It is well settled the State and its agencies are not liable for ordinary court costs, as a mattez of public policy."). Banks has not cited specific statutory authority exempting him from the general rule.