The division by order determined that Liberty Mutual was entitled to a subrogation interest out of the settlement of $24,000. Kim R. Swanson appealed the decision of the Workers' Compensation Division to the Workers' Compensation Court. There Kim R. Swanson contended that the settlement included payment by the responsible third party for noneconomic as well as economic losses sustained by the claimant and that such noneconomic losses were the property right of Kim R. Swanson and not subject to the subrogation claims of Liberty Mutual. The Workers' Compensation Court, relying on Fisher v. Missoula White Pine Sash Co. (1974), 164 Mont. 41, 518 P.2d 795, concluded that the Workers' Compensation Act does not provide a differentiation between those portions of the settlement allocated to wrongful death and survival claims, or to econimic and noneconomic losses, or to the wife and children. On that basis, the Workers' Compensation Court affirmed the division order that Liberty Mutual was entitled to subrogation of $24,000 from the settlement.
See Raisler v. Burlington Northern R. Co. (1985), 219 Mont. 254, 260, 717 P.2d 535, 538; see also Shea v. North-Butte Mining Co. (1919), 55 Mont. 522, 528, 179 P. 499, 501 (discussing how the Montana Legislature intended to create a "substitute for the imperfect and economically wasteful common-law system by private action" in enacting our Workers' Compensation Act in 1915). ¶ 30 Thus, we determined in Fisher v. Missoula White Pine Sash Company (1974), 164 Mont. 41, 518 P.2d 795, that "any subrogation right the employer or its insurer possess is purely statutory" and, therefore, is "governed by the provisions of the Montana Workmen's Compensation Act." Fisher, 164 Mont. at 44-45, 518 P.2d at 797.
The Workers' Compensation Court issued its findings of fact and conclusions of law in this case on September 14, 1982. American Hardware contends that the court has made a retroactive application of the Swanson rule and that the company is entitled to have its subrogation right determined according to Tuttle v. Morrison-Knudsen Company, Inc. (1978), 177 Mont. 166, 580 P.2d 1379. American Hardware also contends that the decision in Swanson, supra, overruled Fisher v. Missoula White Pine Sash Company v. Michigan Mutual Liability Company (1974), 164 Mont. 41, 518 P.2d 795, and thus constitutes "new" decisional law which should not be given retroactive application. The cross appeal misapprehends our holding in Swanson.
The cases which would not allow recovery are Enghusen v H. Christiansen Sons Inc, 259 Minn. 442; 107 N.W.2d 843 (1961), Holley v Stansfield, 186 F. Supp. 805 (ED Va 1960), Anderson v Borough of Greenfield, 442 Pa. 11; 273 A.2d 512 (1971), Brocker Manufacturing Supply Co v Mashburn, supra, and Maryland Casualty Co v Rowe, 256 Ark. 221; 506 S.W.2d 569 (1974). The two cases which would allow recovery are Fisher v Missoula White Pine Sash Co, 164 Mont. 41; 518 P.2d 795 (1974), and Beam v Maryland Casualty Co, 477 S.W.2d 510 (Tenn, 1972). None of the previously cited authorities conclusively determine the question before us. Additional policy and statutory interpretation arguments could be made for both sides.
"[A] wrongful death action . . . creates an independent right in designated survivors for damages they sustain by reason of the decedent's death." Fisher v. Missoula White Pine Sash Co., 518 P.2d 795, 797 (Mont. 1974). NRS 41A.097(1) gives the heirs such a cause of action against a "provider of health care."
Occasions in which this right of subrogation has been limited by this Court are few. In Fisher v. Missoula White Pine Sash Co. (1974), 164 Mont. 41, 518 P.2d 795, this Court held that the statutory language did not differentiate between a survival action and a wrongful death action. In Swanson v. Champion International (1982), 197 Mont. 509, 646 P.2d 1166, the Fisher ruling was distinguished as no longer applicable after the 1977 amendment to the Workers' Compensation subrogation statute was enacted.
This Court has previously pointed out that the purpose of the subrogation provision is to compensate an employer and his insurer to some extent for the additional liability which they assume under the Workers' Compensation Act for wrongful acts of independent third parties. See Tuttle v. Morrison-Knudsen Co., Inc. (1978), 177 Mont. 166, 580 P.2d 1379; Fisher v. Missoula White Pine Sash Co. (1974), 164 Mont. 41, 518 P.2d 795. I therefore conclude that Skauge is not authority for limiting the subrogation right granted to the State Fund.
We recognize that the purpose of the subrogation provisions of the Workmen's Compensation Act is to compensate the employer and insurer to some extent for the additional liability they assume, under the Act, for wrongful acts of third party tortfeasors. Fisher v. Missoula White Pine Sash Company v. Michigan Mutual Liability Co., (1974), 164 Mont. 41, 518 P.2d 795. The Division's order in this case did not violate this purpose. All that it did was to require the insurer to pay its fair share of the costs and attorney fees for the benefit claimant obtained for them.
* * *" See also, Fisher v. Msla. White Pine v. Mich. Mut. Co., 164 Mont. 41, 518 P.2d 795. In the instant case, Sylvia Meyers could not recover for injuries should she have lived, therefore her son cannot recover for wrongful death due to the fact she died.