Therefore, the statute establishes a mechanism under which either the employee or the employer or compensation carrier can assert or maintain such claims or actions against third parties, and the statute establishes a formula which allows the employer or carrier to recoup part or all of its past and future compensation payments from any recovery from third parties. Ark. Code Ann. § 11-9-410 (1987); see also,Liberty Mutual Insurance v. Billingsley, 256 Ark. 947, 511 S.W.2d 476 (1974); Hartford Insurance Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971). Ark. Code Ann. § 11-9-410 (a) (1987) preserves the right of the claimant to file an action or pursue a claim against a third party without losing his rights to receive the benefits provided under the Arkansas Workers' Compensation law. Likewise, Ark. Code Ann. § 11-9-410 (b) (1987) preserves the right of the employer to pursue an action against the third party.
This is true because its claim for damages is limited to whatever claims ARCN has against JMG, and ARCN has no justifiable claim for damages against JMG. See Hartford Ins. Grp. v. Carter, 473 S.W.2d 918, 919 (Ark. 1971). This is the case because JMG and ARCN entered into a valid contract and ARCN got exactly what the contract provided: a piece of property with all recorded easements.
Rather, intervention simply ‘ perfects a lien’ on behalf of the carrier upon the proceeds of any settlement or judgment paid by a third party tortfeasor to the employee. See generally,Hartford Insurance Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971). Additionally, even if that were true, it would not entitle plaintiffs to a " new trial" as requested by them.
The Arkansas law is the same as the Tennessee law cited supra in that a subrogated insurer is barred if the insured would be barred from pursuing his cause of action because of his contributory negligence. Hartford Insurance Group v. Carter, 251 Ark. 680, 473 S.W.2d 918. Accordingly, plaintiff's complaint is dismissed with prejudice.
We strictly construe statutes that impose duties or liabilities unknown at common law in favor of those upon whom the burden is sought to be imposed, and nothing will be taken as intended that is not clearly expressed. Hartford Ins. Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971); see also Norman J. Singer, 3 Sutherland Stat. Const. § 61.01, at 171 (5th ed. 1992). McDonald's argument would require us to conclude that the legislature intended section 11-2-117 to subject all landowners who lease property to employers of more than five employees to liability for negligence in failing to provide and maintain a safe workplace.
Ms. Parmley urges, in her third point on appeal, that the trial court erred in finding that Ark. Code Ann. 16-114-204 is invalid in its entirety because the statute is in derogation of the common law and must be strictly construed in favor of those upon whom the burden sought to be imposed. See Hartford Ins. Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971). Again, the question is mooted by Thomas v. Cornell, supra, and Weidrick v. Arnold, supra.
The Company argues that because 23-83-119 and 23-83-117 (providing conversion must be applied for within 31 days after termination of work) and 23-83-118 (providing the minimum amount of insurance upon conversion), make no reference to the notice and extension provisions in 23-83-122, they should be construed separately and without consideration of the notice requirement and extension provisions of 23-83-122. Although it is true that there is no common law extension period for insurance policies, and thus the Statutes are in "derogation" of the common law and to be construed strictly, Hartford Ins. Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971), we cannot agree that 23-83-122 somehow becomes irrelevant when the other sections are considered. It is also argued that the line in 23-83-122 which provides that "nothing in this subsection shall be construed to continue any insurance beyond the period provided in the policy" prohibits adding the 31-day and 60-day extension periods together.
We have held that, where a settlement was made by an injured employee with a third-party tortfeasor before the filing of a workmen's compensation claim, 81-1340(c) was not applicable to the third-party tortfeasor. Hartford Insurance Group v. Carter, 251 Ark. 680, 473 S.W.2d 918. The application of those cases should be confined to the particular situations there involved. Fundamental fairness, justice and reason dictate that subsection (c) should apply to any settlement.
Id. In Hartford Insurance Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971), the court reached the opposite result and held that the release was effective against the compensation carrier; however, the court seemed to partially base its holding upon the fact that the release was executed prior to any workers' compensation claim being filed, and in addition, the wrongdoer had no notice of any potential claim by the carrier. [9] It is undisputed in this case that the release agreement was executed without Liberty Mutual's knowledge or consent. Also, Liberty Mutual's affidavit states that a letter was sent to Whitaker, the wrongdoer, informing him of its subrogation right prior to the settlement in this case, and Whitaker did not dispute this fact.
Read in conjunction with the rights provided in subsection (a)(1), the only logical interpretation of subsection (a)(2), which adds to and is consistent with subsection (a)(1), is that it applies to situations where the workers' compensation claim is filed after the assertion of the third party claim, such as in the case presently before the Commission. This interpretation is supported by the Arkansas Supreme Court's analysis of the statute in [Hartford Insurance Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971)] where the Court stated that "subsection (a)(2) recognizes that an employee can make . . . an adjustment before filing a Workmen's Compensation claim by providing a procedure for the application of the proceeds thereof between the employee and the employer when a claim is filed." Id. Although not applicable to the present case, the third potential situation involves the failure of the employee to assert a third party claim and subsection (b) addresses this possibility by establishing a procedure to allow the employer/carrier to initiate a claim against the third party.