Travelers Indemnity Co. of America v. Jarrells , 906 N.E.2d 912 ( 2009 )

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

The Travelers Indemnity Company of America ("Travelers") appeals the trial court's grant of summary judgment in favor of Jerry Jarrells.

We reverse and remand with instructions.

ISSUE

Whether the trial court erred in granting summary judgment to Jarrells.

FACTS

The ensuing facts are undisputed. Travelers issued an insurance policy to LeMaster Steel Erectors, Inc. ("LeMas-ter"). Under the policy, Travelers provided worker's compensation coverage for Le-Master's employees for injuries sustained within the scope of their employment. On September 3, 2002, Jarrells suffered serious injuries when a wall fell on him at a Hamilton County construction site under the control of general contractor, R.D.J. Custom Homes, Inc. ("R.D.J."). The accident occurred in the seope of Jarrells employment with LeMaster, and Jarrells submitted worker's compensation claims to Travelers in the approximate amount of $66,135.67, which consisted of disability indemnity payments of $21,025.91, and medical payments of $45,904.76. Travelers paid Jarrells' submitted worker's compensation claims in full.

On December 12, 2002, Jarrells brought a third-party personal injury action against R.D.J. and Armando Delgadillo, the general contractor and subcontractor, respectively, at the construction site. On February 83, 2004, Jarrells counsel contacted Travelers and requested a copy of Travelers' worker's compensation records with regard to Jarrells. Thereafter, on August 2, 2004, Jarrells' counsel provided Travelers with a copy of the complaint for damages filed against R.D.J. and Delgadillo. On December 6, 2004, August 3, 2005, and August 15, 2005, Travelers notified Jar-rells' counsel that Travelers was asserting a statutory lien in the amount of $66,135.67 for the worker's compensation payments (medical bills, temporary total disability and permanent partial disability) that it had made on Jarrells' behalf.

Jarrells' lawsuit against R.D.J. and Del-gadillo proceeded to jury trial from August 16-18, 2005. At trial, the parties presented documentary evidence and argued to the jury that Travelers had made Jarrells approximately $66,135.67 in worker's compensation payments on behalf of Jarrells and had asserted a lien in that amount. Before jury deliberations, the trial court gave the following final instruction:

FINAL INSTRUCTION NO. 23

If you find that Jerry Jarrells is entitled to recover, you shall consider evidence of payment made by some collateral source to compensate Jarrells for damages resulting from the accident in question. In determining the amount of Jarrells [sic] damages, you must consider the following type of collateral source payments:

Payments for workers [sic] compensation.

In determining the amount received by Jarrells from collateral sources, you may consider any amount Jarrells is required to repay to a collateral source and the cost to Jarrells of collateral benefits received. Jarrells may not recover more than once for any item of loss sustained.

(App.22). The jury returned a verdict in favor of Jarrells and determined damages in the amount of $925,000.00. The jury assessed the comparative fault of the parties as follows: Jarrells, 15% at fault; Le-Master, 30% at fault; R.D.J., 55% at fault; and Delgadillo, 0% at fault. Accordingly, the jury awarded Jarrells a judgment of $508,750.00 ($925,000.00 x 0.55) against R.D.J. On September 23, 2005, the trial court entered a release and satisfaction of judgment against R.D.J. in the amount of $508,750.00.

On September 7, 2006, counsel for Jar-rells provided Travelers with a copy of the jury's verdiet and judgment against R.D.J. Counsel also informed Travelers that Travelers was not entitled to receive any of the judgment proceeds because the jury had already taken into consideration Tray-elers' payment of worker's compensation and had deducted that amount from its final award of damages to Jarrells On November 8, 2006, Travelers demanded pro rate reimbursement from Jarrells of $22,495.75 ¹ for the worker's compensation paid on behalf of Jarrells pursuant to Indiana Code section 22-8-2-13.

On March 26, 2007, Travelers filed a motion to intervene and to set aside the satisfaction of judgment. The trial court permitted Travelers to intervene and conducted a hearing on the motion on May 23, 2007, and subsequently, denied Travelers' motion to set aside the satisfaction of the judgment. On January 7, 2008, Travelers filed a motion for summary judgment, wherein it sought an order requiring Jar-relis to repay a portion of the worker's compensation lien. On May 5, 2008, the trial court conducted a hearing on Travelers' motion for summary judgment. In its order of June 26, 2008, the trial court denied Travelers' motion for summary judgment, noting, in pertinent part, the following:

4. * * * By introducing evidence at trial that he had received worker's compensation benefits from Travelers, and by requesting and receiving the final instruction on collateral-souree payments that was specifically approved in Pendleton v. Aguilar, 827 N.E.2d 614, 621 (Ind.Ct.App.2005), trams. demied, Jarrells ensured that the jury knew he had received collateral-source payments and that, in the words of the relevant final instruction, he 'may not recover more than once for any item of loss sustained.' In Pendleton, the Court of Appeals reversed a trial court's order that granted a defendant a set-off for worker's compensation payment after the jury received evidence of such payments and heard precisely the same final instruction that Jarrells's jury heard in this case. According to Pendleton, the jury in such circumstances must be deemed to have allowed for a reduction of such worker's compensation payments in its verdict. Granting a separate set-off, after trial, thus would constitute a double set-off, and 'a double set-off is not allowed under the Indiana Collateral Source Statute." 827 N.E.2d at 621.

Jarrells's jury very well could have been confused when it deliberated on the specific amount of his award. In closing argument at trial, Jarrelis's counsel asked the jury to award Jarrells $2,000,000.00, of which $832,000.00 would be compensation for lost wages ($41,600/ year x 20 years) ... with the remainder compensating Jarrells for 'the difference between Jerry the provider, the father, and the Jerry, the man you see today' The jury's raw verdict of $925,000.00, which is $93,000.00 more than the amount Jarrells requested for lost wages, thus can be seen as granting his entire request for lost wages but rejecting his general claim for pain and suffering-while still awarding an additional amount sufficient to permit Jar-rells to repay Travelers $66,135.67 for worker's compensation benefits. Such an interpretation of the verdiet is plausible also because the final instruction on collateral-source payments does not explicitly and unmistakably state that any award will be deemed to include a set-off for worker's compensation payments, such that Jarrells need not make a separate repayment of that benefit to Travelers from his award.

This interpretive exercise, however, is precisely the kind of second-guessing of the jury in which reviewing courts in Indiana must not engage. See Pendleton, 827 N.E.2d at 621. Thus, even though there are facially plausible reasons for such interpretations of the ree-ord, this Court is constrained by Pendle-ton to reject Travelers' request for a set-off from the jury's verdict. Travelers' request for summary judgment therefore should be denied.

(App.18-19) (footnote omitted). Pursuant to Indiana Code section 22-3-2-13, Travelers claims that it was entitled to a statutory lien and/or reimbursement for the pro rata value of worker's compensation payments made on behalf of Jarrells. Travelers now appeals.

Additional facts will be provided as necessary.

DECISION

Travelers argues that the trial court erred in denying its motion for summary judgment because the statutory lien entitled it to reimbursement of worker's compensation payments made on behalf of Jar-rells. We agree.

Our standard of review for a trial court's grant of a motion for summary judgment is well settled.

[Wle must decide whether there is a genuine issue of material fact that precludes summary judgment and whether the moving party is entitled to a judgment as a matter of law. Once the moving party has sustained its initial burden of proving the absence of a genuine issue of material fact and the appropriateness of judgment as a matter of law, the party opposing summary Judgment must respond by designating specific facts establishing a genuine issue for trial We may consider only those portions of the pleadings, depositions, and any other matters specifically designated to the trial court by the parties for purposes of the motion for summary judgment. Any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmov-ing party. Although the nonmovant has the burden of demonstrating that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that the nonmovant was not improperly denied his or her day in court.

City of Mishawaka v. Kvale, 810 N.E.2d 1129, 1132-33 (Ind.Ct.App.2004) (internal citations omitted).

At issue here is whether Travelers has a right to a worker's compensation lien. In Spangler, Jennings & Dougherty P.C. v. Indiana Ins. Co., 729 N.E.2d 117, 120 (Ind.2000), our supreme court undertook a comprehensive discussion of Indiana's worker's compensation system, and stated, in pertinent part, the following:

Under Indiana's worker's compensation system, employers must provide limited compensation to workers whose injuries arise out of and in the course of [their] employment, regardless of fault. In return ... the employer is given immunity from civil litigation with his employee. The scheme is ... social legislation designed to aid workers and their dependents and 'shift the economic burden for employment related injuries from the employee to the employer and consumers of its products [and services]. Id. * * * In addition to shifting the cost of injuries from worker to employer to achieve social policy goals, the Worker's Compensation Act also provides a way to seek compensation from third-parties who caused injuries. Id. The concept underlying third party actions is the moral idea that the ultimate loss from wrongdoing should fall upon the wrongdoer.

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In worker's compensation third-party actions, as in other tort settings, the comparative fault of the injured employee-plaintiff is factored into the final judgment or settlement. And, while the employee is generally required to repay the worker's compensation carrier for benefits and expenses paid while the employee pursued the third-party action, the amount of that reimbursement is likewise reduced by the amount of the employee's comparative fault.

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The worker's compensation provision governing claims against third persons, Ind.Code § 22-3-2-18, provides a plaintiff the opportunity to choose between worker's compensation and third-party judgments in some situations, so that he might maximize the recovery. If the final judgment in a suit brought by an injured employee is less than the amount of the worker's compensation benefits and medical expenses, the employee can choose to accept the judgment and reimburse the worker's compensation payor, or to assign all rights to the judgment to the worker's compensation payor, and continue to accept the benefits as prescribed by the Board. Ind.Code Aun. § 22-3-2-18.

If through settlement or litigation an employee obtains an amount that is more than the worker's compensation benefits, then the employee must reimburse the worker's compensation payor and keep the remainder of the judgment or settlement, thereby relinguishing all right to the compensation benefits.

Spangler, 729 N.E.2d at 120 (internal citations and quotations omitted) (emphasis added).

Indiana Code section 22-3-2-13 provides, in pertinent part, the following:

If the injured employee or his dependents shall agree to receive compensation from the employer or the employer's compensation insurance carrier or to accept from the employer or the employer's compensation insurance carrier, by loan or otherwise, any payment on account of the compensation, or institute proceedings to recover the same, the employer or the employer's compensation insurance carrier shall have a lien upon any settlement award, judgment or fund out of which the employee might be compensated from the third party.

1.0. § 22-38-2-18; Tack's Steel Corp. v. ARC Const. Co., Inc., 821 N.E.2d 883, 890 (Ind.Ct.App.2005). "[The primary policy reason for allowing worker's compensation liens [is] to prevent double recovery." Id. (citing Waldridge v. Futurex Indus., Inc., 714 N.E.2d 783, 786 (Ind.Ct.App.1999)).

The admissibility of evidence of worker's compensation payments made on behalf of an injured party is governed by Indiana's collateral source statute. At common law, the collateral source rule "prohibited tort-feasors from introducing evidence of compensation received by plaintiffs from collateral sources, ie., sources other than the defendant, to reduce damage awards." Shirley v. Russell, 663 N.E.2d 532, 534 (Ind.1996). "As a result, there could be no abatement of damages when partial compensation was received for an injury from a collateral source independent of the one responsible for the loss, and thus, tortfea-sors were held fully accountable for the consequences of their conduct." Pendleton v. Aguilar, 827 N.E.2d 614, 620 (Ind.Ct.App.2005).

In 1986, however, the Indiana Legislature enacted the collateral source statute found in Indiana Code section 34-44-1-2. The stated aims of Indiana's collateral source statute are to determine the actual amount of the prevailing party's pecuniary loss, and to preclude that party from recovering more than onee from all applicable sources for each item of loss sustained in a personal injury or a wrongful death action. Specifically, Indiana Code section 34-44-1-2 provides:

In a personal injury or wrongful death action, the court shall allow the admission into evidence of:

(1) proof of collateral source payments other than:

(A) payments of life insurance or other death benefits;

(B) insurance benefits for which the plaintiff or members of the plaintiff's family have paid for directly; or

(C) payments made by:

(i) the state or the United States; or

(i) any agency, instrumentality, or subdivision of the state or the United States;

that have been made before trial to a plaintiff as compensation for the loss or injury for which the action is brought.

1C. § 84-44-1-2.

Travelers asserts that under the facts and cireumstances of this case and pursuant to Indiana Code section 22-3-2-13, it is entitled to a statutory lien and/or pro rata reimbursement for the worker's compensation payments that it had paid on behalf of Jarrelis. Thus, Travelers argues, the trial court erred in denying its motion for summary judgment. Jarrells counters by citing to Pendleton v. Aguilar, 827 N.E.2d 614 (Ind.Ct.App.2005), in support of its contention that the jury had already deducted the amount of the worker's compensation payments from its award of damages to Jarrells, and therefore, granting Travelers' motion for a set-off would result in a double set-off against Jarrells and a windfall to Travelers.

We have reviewed the Pondleton case, which involved a situation in which a tort-feasor sought a set-off of the worker's compensation payments paid from the Illinois Guaranty Fund, and thereby attempted to impermissibly benefit from an insurer's payment of worker's compensation on behalf of the injured worker. In Pendle-ton, we concluded that "[ajpplying the legislature's intent and clear language of the statute logically, ... the statute never intended a tortfeasor to be relieved of his responsibility for damages beyond the statutory provisions in this case." Id. at 621.

Here, on the other hand, we believe that the instant case is distinguishable from Pendleton in that it involves an insurer, who pursuant to its contract of insurance and Indiana's statutory lien, seeks pro rata reimbursement of the worker's compensation payments made on behalf of the injured worker, after the worker recovered a judgment for damages against a third party who was found liable for his injuries.

It is well-settled that where, as here, a statute is clear and unambiguous, "we need not apply any rules of construction other than to require that words and phrases be taken in their plain, ordinary, and usual sense." Marion County v. State, 888 N.E.2d 292, 303 (Ind.Ct.App.2008) (quoting Poehlman v. Feferman, 717 N.E.2d 578, 581 (Ind.1999)). By its language in Indiana Code section 22-3-2-13, the Indiana Legislature expressed a clear intent to ereate a statutory lien in and for the benefit of an employer's compensation insurance carrier who has made worker's compensation payments on behalf of an injured worker, where the injured worker has recovered a judgment against a third party who has been found liable for the worker's injuries. The statute provides, in relevant part, as follows:

[LC. § ] 22-33-2418. Liability of third person-Subrogation of employer-Lien on award to employee-Notice to employer if employee sues-Settlement....

Whenever an injury ... for which compensation is payable under chapters 2 through 6 of this article shall have been sustained under cireumstances creating in some other person than the employer and not in the same employ a legal liability to pay damages in respect thereto, the injured employee ... may commence legal proceedings against the other person to recover damages notwithstanding the employer's or the employer's compensation insurance carrier's payment of or liability to pay compensation under chapters 2 through 6 of this article. In that case, however, if the action against the other person is brought by the injured employee ... and judgment is obtained and paid, and accepted or settlement is made with the other person, either with or without suit, then from the amount received by the employee ... there shall be paid to the employer or the employer's compensation insurance carrier, subject to its paying its pro-rata share of the reasonable and necessary costs and expenses of asserting the third party claim, the amount of compensation paid to the employee ..., plus the medical, surgical, hospital and nurses' services and supplies ... paid by the employer or the employer's compensation insurance carrier....

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If the injured employee shall agree to receive compensation from the employer or the employer's compensation insurance carrier or to accept from the employer or the employer's compensation insurance carrier, by loan or otherwise, any payment on account of the compensation, or institute proceedings to recover the same, the employer or the employer's compensation insurance carrier shall have a lien upon any settlement award, judgment or fund out of which the employee might be compensated from the third party.

1.C. § 22-3-2-18.

In the instant case, without dispute, Jar-rells received approximately $67,000.00 in worker's compensation payments that were paid by Travelers. Jarrells later filed an action for damages against R.D.J. During the course of the trial, the parties presented evidence to the jury that Jar-rells had received worker's compensation payments from Travelers; that said payments were collateral source payments; and, that the jury may consider any amount of the collateral source payments and costs that Jarrells may have to repay in arriving at damages but, that Jarrells could not recover more than once for any item of loss sustained. (App.22). The jury returned a verdict in favor of Jarrells for damages and a judgment for $508,750.00 against R.D.J. (App.23).

On appeal, we presume that the jury followed the trial court's instructions and applied the law contained within the instruction to the evidence before it. Tipmont Rural Elec: Membership Corp. v. Fischer, 697 N.E.2d 83, 90 (Ind.Ct.App.1998). Thus, based upon the foregoing, we conclude that Travelers is entitled to a statutory lien and/or reimbursement from the judgment for the worker's compensation it paid on Jarrells' behalf, "subject to [] paying its pro-rata share of the expenses of the reasonable and necessary costs and expenses of asserting the third party claim." IC. § 22-83-2-12. Accordingly, we reverse the trial court's grant of summary judgment in favor of Jarrells and remand with instructions to enter judgment for Travelers and to determine the value of Travelers' lien and its pro rata share for purposes of reimbursement.

Reversed and remanded.

VAIDIK, J., concurs in result with separate opinion. RILEY, J., dissents with separate opinion.

1 . According to Travelers, this sum represents Jarrells' purported lien obligation after Travelers, pursuant to Indiana Code section 22-3-2-13. Travelers arrived at this figure after deducting its pro rata share of the costs, expenses, and attorney's fees incurred in pursuit of the third party claim.