Hartford Accident &c. Co. v. Tolison

• Decision Date: 15 November 1968
• Docket Number: 43740.
• Citation: 118 Ga. App. 660,165 S.E.2d 192
• Parties: HARTFORD ACCIDENT & INDEMNITY COMPANY et al. v. TOLISON.
• Court: Georgia Court of Appeals

118 Ga. App. 660

165 S.E.2d 192

HARTFORD ACCIDENT & INDEMNITY COMPANY et al. v. TOLISON.

43740.

Court of Appeals of Georgia.

Argued June 3, 1968.

Decided November 15, 1968.

Brackett, Lyle & Arnall, H. P. Arnall, Claud F. Brackett, Jr., for appellants.

Charles L. Drew, for appellee.

EBERHARDT, Judge.

The sole question for decision is whether, in a claim for workmen's compensation, the employer or insurance carrier is entitled to credit for sums received by the employee in settlement of a claim against the third party tortfeasor causing the injuries, where the written notice provided for by Code Ann. § 114-403 is not given by the employer or carrier to the employee or to the tortfeasor. Code Ann. § 114-403 provides: "Whenever any person is called upon to pay compensation, medical expenses and/or funeral expenses on account of injury or death compensable under this Title, and such person contends that a person or persons other than the employer is liable to pay damages, on account of such injury or death, to the injured employee or those entitled to recover for the employee's death, such person called upon to make such payment may give to the persons contended to be so liable and to the injured employee or those entitled to recover on account of his death written notice of such contention and of the fact that the person giving notice is required to make such payment. Upon giving such written notice, the person called upon to make such payment shall be subrogated, to the extent of the compensation medical expenses and/or funeral expenses payable, to all rights arising out of the injury or death which the injured employee or those entitled to recover on account of his death shall have against such notified persons, and shall have a lien therefor against the net recovery of any judgment or settlement recovered by the injured employee or those entitled to recover on account of the employee's death against any of the persons so notified." (Emphasis supplied.)

It is readily apparent from the plain wording of the statute that it is only "upon giving such written notice" that a lien against the recovery and right to subrogation arises by virtue of that statute; and, since no written notice has been given up to this point, it only remains to be determined whether the statute constitutes the exclusive authority for crediting the employer or carrier with sums paid by the tortfeasor.

Prior to Ga. L. 1922, p. 189, amending the Workmen's Compensation Act by enacting the forerunner of the present Code Ann. § 114-403, the injured employee was entitled to the full amount of damages from the tortfeasor and the full amount of compensation payable under the Act; and a settlement by the employee with the tortfeasor did not inure to the benefit of the employer and could not be pleaded by him in bar of compensation. Atlantic Ice &c. Corp. v. Wishard, 30 Ga. App. 730 (1, 3) (119 SE 429). It was only by virtue of the amendment of 1922 that the employee's right to both compensation from the employer and damages from the tortfeasor was circumscribed so that the employer or carrier was entitled to reduce the amount of compensation by the amount of damages recovered. Liberty Mut. Ins. Co. v. Crist, 86 Ga. App. 584, 589 (71 SE2d 910); Travelers Ins. Co. v. Luckey, 46 Ga. App. 593, 595 (167 SE 907); Atlantic Ice &c. Corp. v. Wishard, supra. Cf. Continental Cas. Co. v. Swift & Co., 222 Ga. 80 (148 SE2d 489).

Since it is only by virtue of statute that a reduction or credit is authorized, and the terms of the statute have not yet been met, it must follow that the...