Opinion
Rehearing Denied June 25, 1971.
Opinion Superseded, 291 N.E.2d 550.
Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellants.
Jerrald A. Crowell, Bowman, Crowells&sSwihart, Fort Wayne, for appellee.
ROBERTSON, Judge.
Appellee-plaintiff's husband, while in the course of employment of the appellant-defendant, was struck and killed by the automobile of a third person. The appellee received a compensation award comprised of $43.20 for 450 weeks (not to exceed $20,000), and $1,586.85 covering funeral, medical, and hospital expenses. Subsequently, the appellee secured a settlement with the third party tort-feasor.
Because of disagreement regarding the amount of attorney's fees to be collected by appellee's attorney, a suit for declaratory judgment was filed against the appellant defendant, and eventually summary judgment for the appellee-plaintiff was granted. Appellant's motion to correct errors specified, inter alia, the recovery (attorney's fees) granted to appellee was excessive. This appeal is based on the overruling of the motion with the primary dispute revolving about the statutory interpretation of the following section of Burns' Ind.Stat.Ann. § 40--1213, I.C.1971, 22--3--2--13, which provides that after settlement with a third party tort-feasor:
Out of any reimbursement received by the employer or such employer's compensation insurance carrier pursuant to this section, they shall pay their pro rata share of all costs and reasonably necessary expenses in connection with such third party claim, action or suit and to the attorney at law selected by the employee or his dependents, a fee of twenty-five per cent (25%), if collected without trial, of the amount of benefits which benefits shall consist of the amount of reimbursements, after the expenses and costs in connection with such third party claim have been deducted therefrom, * * *.' (Emphasis added)
Appellee contends that attorney's fees of 25% were collectable from the total compensation award, whereas, the appellant says attorney's fees in the same percentage of the amount paid to appellee as of the time of the settlement are collectable.
It is with the latter contention that this court agrees. To hold otherwise would place a strain beyond the breaking point upon the word 'reimbursement' as used in the statute.
'The construction of all statutes of this state shall be by the following rules, unless such construction be plainly repugnant to the intent of the legislature or of the context of the same statute:
'First. Words and phrases shall be taken in their plain, or ordinary and usual, sense. But technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import.' Burns' Ind.Stat.Ann. § 1--201, I.C.1971, 1--1--4--1. (Emphasis added).
Various dictionary definitions of the word 'reimburse' are as follows:
'To pay back, to make restoration, to repay that expended: to indemnify, or make whole * * *' Black's Law Dictionary, 4th Edition (1951), p. 1452.
'To pay back to someone: repay, * * *' Webster's Seventh New Collegiate Dictionary (1965), p. 722.
'To pay back as an equivalent for what has been spent or lost; Refund * * *.' Funks&sWagnalls New Practical Standard Dictionary (1956), p. 1103.
The common factor of these definitions portrays the act of paying back from funds received. A reading of the statute in question bears out this interpretation of the word. The addition of the word 'received' in the compensation statute further indicates the legislative intent of indicating sums that have been paid, and not the total amount of the award to the claimant.
Furthermore, there is no showing of any requirement that the words involved herein require a technical, as opposed to plain, ordinary and usual interpretation.
Since this is a case of first impression in Indiana, appellee's counsel has pointed out jurisdictions in which holdings supporting his contention prevail. For this we are grateful. However, a close reading of the applicable statutes involved do not reveal sufficient similarity to be of help in this jurisdiction.
An example is the statute in New Jersey, comparable to our Burns' Ind.Stat.Ann. s 40--1213, which reads:
The decision of the trial court is reversed and the cause remanded for further action consistent with the holdings herein.
SULLIVAN, P.J., and BUCHANAN and LOWDERMILK, JJ., concur.
'* * * (e) * * * 'attorneys fee' shall mean such fee, but not in excess of thirty-three and one-third percentum of that part of the sum paid in release or in judgment to the injured employee or his dependents by such third party or corporation to which the employer or his insurance carrier shall be entitled in reimbursement under the provisions of this section, but on all sums in excess thereof, this percentage shall not be binding.' R.S. 34:15--40, N.J.S.A. (Emphasis added).
It is clear by noting the emphasized words, that appellant's position would be upheld, as in Travelers Ins. Co. v. Lumber Mut. Casualty Ins. Co. of New York (1952), 20 N.J.Super. 265, 89 A.2d 717. Such wording or intent is notably absent in the Indiana Statute.