Opinion
No. 43206.
November 16, 1964.
1. Workmen's compensation — third-party tort-feasors — intervention — reimbursement for compensation — as not including legal fees paid for intervention.
Where decedent's employer's compensation insurer, seeking reimbursement for compensation, including funeral benefit, paid by insurer, intervened in action against third-party tort-feasors to recover damages for death of plaintiffs' husband and father, insurer was not entitled to reimbursement for attorney's fee paid counsel for intervention to be paid from proceeds of compromise settlement of action as reasonable cost of collection. Secs. 6998-02(10), 6998-36, Code 1942.
2. Workmen's compensation — third-party tort-feasors — intervention — optional, not mandatory.
Intervention by employer's compensation insurer in action against third-party tort-feasor to recover damages for injury or death of employee for purpose of obtaining reimbursement for compensation, including funeral or medical benefits, paid by insurer, is optional and not mandatory. Sec. 6998-36, Code 1942.
3. Workmen's compensation — third-party tort-feasors — intervention — what reimbursement for compensation includes.
Recovery by employer's compensation insurer upon intervention, under statute, in action against third-party tort-feasor to recover damages for injury or death of employee is limited to reimbursement for compensation, including funeral benefits and medical expenses, paid by insurer or extinguishment of legal liability therefor, and does not include legal fees paid for intervention. Secs. 6998-02(10), 6998-36, Code 1942.
Headnotes as approved by Patterson, J.
APPEAL from the Circuit Court of Jones County; LUNSFORD CASEY, J.
Quitman Ross, Collins Tew, Laurel, for appellants.
I. The court erred in allowing intervening workmen's compensation insurance carrier reimbursement of the fees paid its attorneys for filing the insurer's intervention seeking reimbursement of workmen's compensation benefits paid by the insurer to appellants. Richardson v. United States Fidelity Guaranty Co., 233 Miss. 375, 102 So.2d 368; Sec. 6998-36, Code 1942.
Pack Ratcliff, Laurel, for appellee.
I. It was necessary for the insurer to intervene to protect itself, thereby becoming a party plaintiff in the suit insofar as its claim for reimbursement was concerned. The insurer was entitled to reimbursement for the reasonable cost thereof, just as the attorneys for appellants were entitled to compensation. Out of the total allowance of attorneys' fees as costs of collection, the charge which was made by the carrier's attorney should be paid.
This is an appeal from the Circuit Court of Jones County where a judgment was entered on behalf of the plaintiffs below for the death of their husband and father against Gulf, Mobile, Ohio Railroad Company and its engineer. The Aetna Casualty Surety Company, intervenor below, was the workmen's compensation insurance carrier for the decedent's employer, and intervened in the circuit court to recover funeral expenses, lump sum payment of $100 to widow, dependent's benefits at the rate of $25 per week for each week commencing December 24, 1958, and $150 paid to the State Treasury under the Second Injury Fund provisions of the law, a total of $5,700 paid by the carrier under the provisions of the Workmen's Compensation Act.
A jury trial resulted in a verdict for the plaintiffs in the sum of $46,500. Subsequent to the rendition of such judgment the defendants, the railroad company and its engineer, prosecuted an appeal to this Court. Before the appeal was perfected, however, a compromise was reached in the sum of $40,000, such sum being paid into the registry of the circuit court. An appeal is taken by the plaintiffs below from an order of the trial judge making a division of the proceeds of the compromise settlement in which the sum of $150 was granted the intervenor appellee, the Aetna Casualty Surety Company, as reimbursement for an attorney's fee paid by it to counsel for the intervention.
The record reflects a finding by the trial judge that the intervenor's attorney did not appear at the trial, but that he did participate in the preparation of the judgment order and in the settlement proceedings, and in addition thereto, filed the pleadings of intervention.
The only issue involved on this appeal is whether the court below was correct in allowing an attorney's fee to be paid to the insurance carrier from the reasonable cost of collection as set forth in Mississippi Code Annotated section 6998-36 (1952).
(Hn 1) We are of the opinion the trial court was in error in the allowance of this attorney's fee.
(Hn 2) The intervenor's action contributed nothing to the attainment of the judgment, but only assured the intervenor, by statute, his right of reimbursement for monies expended as compensation and medical expenses or of the discharge of his legal liability therefor in the event judgment was obtained. The intervention is not required by law, but is optional on the part of the carrier. It could intervene if the prospective judgment appeared great enough to reimburse it for monies expended in accordance with section 6998-36, or it might decline to do so as discretion might dictate. The choice of intervention is that of the carrier and is not mandatory.
(Hn 3) Section 6998-02 subsection (10) defines compensation as "the money allowance payable to an injured worker or his dependents as provided for in this act, and includes funeral benefits provided therein," and does not include legal fees either therein or in other parts of the act, and of course, medical expenses do not include legal fees. The intervenor's recovery is limited to these two items or the extinguishment of legal liability therefor and does not include legal fees.
We are of the opinion and so hold that the statute does not contemplate the inclusion of, as reasonable cost of collection, the payment of attorney's fees for intervention as a party plaintiff when the intervention is discretionary and seeks only reimbursement for compensation or medical expenses or the discharge of the carrier's legal liability therefor.
The order of the trial court is reversed and judgment is rendered here for the appellants insofar as the order allows the sum of $150 as reimbursement to the intervenor for attorney's fees from the reasonable cost of collection.
Reversed and rendered.
Kyle, P.J., Ethridge, Gillespie and Rodgers, JJ., concur.