GLACIER PARK, INC/NATIONAL UNION FIRE INSURANCE COMPANY Employer/Insurer/Petitioners
BRUCE PARKER Claimant/Respondent.
ORDER AND JUDGMENT
Workers' Compensation insurer seeks subrogation based on
claimant's third-party recovery from bar's insurer in
lawsuit alleging bar negligently served alcohol to a visibly
intoxicated person. Claimant settled his workers'
compensation claim for $417, 000, present value. His
third-party settlement was for $425, 000. Insurer argues the
third-party settlement as a matter of law defines the amount
necessary to make claimant whole.
Where insurer has stipulated that claimant's total
economic losses equal 1.5 million, and he had another 1.5
million in non-economic losses, claimant was not made whole
by his workers' compensation and third-party recoveries.
WCC does not read Supreme Court cases as creating the rule
asserted by insurer. Subrogation claim denied.
Subrogation. Insurer seeks subrogation based
on claimant's third-party settlement of $425, 000. His
workers' compensation settlement was $417, 000, present
value, making his total recovery $842, 000. Where the insurer
stipulated claimant's economic losses were 1.5 million,
and he had another 1.5 million in non-economic losses,
claimant has not been made whole and the insurer is not
entitled to subrogation. WCC refused to adopt rule that
amount of settlement of third-party claim, as a matter of
law, defined amount necessary to make claimant whole.
a subrogation case. The claimant/respondent herein, Bruce
Parker, was severely injured in an automobile accident which
occurred in the course and scope of his employment. His
injuries have already been determined compensable despite his
intoxicated state at the time of the accident. His
workers' compensation claim was settled for $417, 000,
present value. In addition, claimant sued the bar which
served him the intoxicating beverages and settled that action
for $425, 000. The parties agree that the settlement fell far
short of his actual damages. However, the insurer/petitioner,
National Union Fire Insurance Company, asserts that, as a
matter of law, claimant's third-party settlement
constituted "full compensation" for his injuries,
thereby entitling it to subrogation and repayment in the
amount of $156, 667.
case has been submitted on an agreed statement of facts and
exhibits set forth in the Parties' Joint Statement of
Stipulated Facts and Exhibits. The pertinent facts are found
claimant was injured in a one-vehicle rollover accident in
Glacier Park on September 2, 1986. He had been drinking at
Saint Mary's Lodge and was intoxicated. (Ex. 2.) He
suffered a spinal cord injury as the result of a fractured
and dislocated ninth vertebra and is paralyzed from the waist
down; he has no bowel or bladder control. He also suffered a
closed-head injury with resultant deficits in memory,
reasoning, attention, problem solving, and comprehension. He
suffers bouts of depression and has attempted suicide.
his accident, his parents have provided him a home and
protection. His attempts to live independently have failed.
time of his accident, claimant was employed by Glacier Park,
Incorporated, which was insured by National Union. Claimant
filed a workers' compensation claim. The claim was denied
and he petitioned the Workers' Compensation Court. In a
decision issued July 6, 1990, this Court concluded that
claimant was in fact acting within the course and scope of
his employment at the time of the accident, and was therefore
entitled to compensation. Bruce Parker v. Glacier Park,
Inc., WCC No. 8905-5341, decided July 6, 1990.
on August 23, 1991, claimant and National Union entered into
a full and final compromise settlement of the workers'
compensation claim. (Ex. 1.) The settlement provided for an
up-front payment of $190, 000, monthly payments of $1, 200
for life, and four periodic payments, made at five-year
intervals totaling $190, 000, to a "spendthrift medical
on August 30, 1989, claimant sued the Saint Mary's bar
(St. Mary R., Inc.), alleging that it violated a common-law
duty "to refrain from furnishing alcohol to a visibly
intoxicated person." (Ex. 2 at 2.) The bar denied
liability and affirmatively alleged that claimant's
injuries were caused by his own negligence. (Ex. 4 at 2.) The
action was ultimately settled for $425, 000 cash paid by the
bar's insurer. That settlement was well within the
bar's $1, 000, 000 per occurrence policy limits. The
insurer did not dispute coverage, so insurance coverage was
not a factor in the settlement.
Union agrees that the settlement with the bar was for far
less than claimant's actual damages. It has stipulated
that the "[t]otal economic losses of Bruce Parker equal
1.5 Million Dollars." It has further stipulated,
"Non-economic losses also equal 1.5 Million Dollars.
Therefore, total damages in Mr. Parker's case equal 3
Million Dollars." (Parties' Joint Statement of
Stipulated Facts and Exhibits at 2.) After attorney fees,
costs, and payment of a ...