ACCOSIF v. American States Ins. Co.
| Decision Date | 21 March 2000 |
| Docket Number | No. 91,395.,91,395. |
| Citation | 2000 OK 21,1 P.3d 987 |
| Parties | ACCOSIF, Plaintiff/Appellant, v. AMERICAN STATES INSURANCE COMPANY, Jim Hagelberg, and Guymon Glass Company, Defendants/Appellees. |
| Court | Oklahoma Supreme Court |
Scott G. Robelen, Oklahoma City, Oklahoma, for the appellant.
Daniel H. Diepenbrock and Grant C. Shellabarger, Miller & Diepenbrock, P.A., Liberal, Kansas, for appellees American States Insurance Company and Guymon Glass Company.
George H. Leach III, Boring & Leach, Guymon, Oklahoma, for appellee Jim Hagelberg.1
¶ 1 The dispositive issue tendered for corrective relief on certiorari is whether the workers' compensation carrier's statute-based district court claim was erroneously dismissed as a time-barred action. We answer in the affirmative.
¶ 2 This is an action by the workers' compensation carrier, Association of County Commissioners of Oklahoma State Insurance Fund (ACCOSIF), against the claimant, Jim Hagelberg (Hagelberg), the third-party tortfeasor, Guymon Glass (tortfeasor), and the latter's insurer, American States Insurance Company (tortfeasor's insurer, ASIC). Invoking the provisions of 85 O.S.1991 § 44(a),2 ACCOSIF seeks to recover a portion of the amount paid to Hagelberg in an earlier compensation claim's settlement. As against Hagelberg ACCOSIF advances the theory of statutory pro tanto recoupment;3 against the tortfeasor's insurer ACCOSIF appears to press a claim under § 44(a) for a wrongful payout made in breach of duty to a known (or knowable) statutory assignee of a chose in action,4 whose theoretical underpinnings are somewhat akin to those advanced in Shebester v. Triple Crown Insurers5 and in a trilogy of attorney's lien cases.6 As for the tortfeasor, we are at a loss to divine from the record what theory of liability is being pressed against that party. We leave that issue unresolved. It is to be dealt with at nisi prius after remand.
¶ 3 Hagelberg, a state employee, sustained on 3 March 1992 an on-the-job-injury in a vehicular accident with an employee of the tortfeasor. He sought workers' compensation benefits. Two days before the two-year statute would have expired, Hagelberg (claimant) sued the actor in a common-law tort action.7 ACCOSIF, the employer's carrier, had paid Hagelberg $26,534.59 in workers' compensation benefits.8
¶ 4 Nearly two years following ACCOSIF's discharge of its compensation liability, the claimant's tort action came to be terminated by settlement. By its terms the tortfeasor's insurer paid Hagelberg the sum of $42,500.00. This action by ACCOSIF was brought on 6 October 1997, just over one year after ACCOSIF alleges to have learned of this settlement.9
¶ 5 Declaring it time-barred as a subrogation claim,10 the trial court dismissed ACCOSIF's action on defendants' motion.11 The Court of Civil Appeals (COCA) reversed the nisi prius dismissal and remanded the cause, holding that the statute of limitations to be applied to this action began to run when the injured party, whose claim was paid by the tortfeasor, refused to "reimburse" the workers' compensation insurer.
¶ 6 Although we agree with COCA's conclusion that the trial court's dismissal order cannot stand, we granted certiorari to provide precedential guidance on a novel point of law. For want of adequate record support, today's pronouncement does not finally settle the following issues: (1) whether a § 44(a) claim would lie in this case against the tortfeasor as well as against its insurer; and if so, on what theory it may be pressed against the former party; and (2) the nature of liability, if any, the tortfeasor is to bear, directly and severally, to the plaintiff (workers' compensation carrier).12
BY THIS ACTION, AUTHORIZED BY THE PROVISIONS OF 85 O.S.1991 § 44(A), PLAINTIFF SEEKS STATUTE-BASED PRO TANTO RECOUPMENT OF ITS WORKERS' COMPENSATION PAYOUT, NOT SUBROGATION PRESCRIBED BY THE TERMS OF 85 O.S.1991 § 44(C)
¶ 7 The action brought by ACCOSIF was mistakenly characterized (both by the defendants and by the district court) as its subrogation claim.13 The terms of 85 O.S. 1991 § 44 fashion a key distinction between subrogation and the demand advanced in the present action.14 Had ACCOSIF pressed its claim against the tortfeasor before Hagelberg brought his suit, or had ACCOSIF joined Hagelberg in the latter's tort claim, the action would have come under the law's subrogation rubric.15 The present claim against Hagelberg falls instead into the pro tanto recoupment category prescribed by the provisions of 85 O.S.1991 § 44(a);16 on the other hand, ACCOSIF's claim against the tortfeasor's insurer is to be viewed as one for wrongful payout.17 The record leaves us uninformed as to the theory pressed against the tortfeasor. The critical payout was made by the tortfeasor's insurer, not by the tortfeasor itself. Absent some record showing of the tortfeasor's involvement in the wrongful payout, we are at a loss to know what theory is pressed against the latter entity. There is no paper trail in this case of the tortfeasor's participation in any payout alleged to be wrongful.
¶ 8 Neither ACCOSIF's non-joinder in Hagelberg's tort litigation nor Hagelberg's subsequent settlement operates as a bar to ACCOSIF's pursuit of its present claim for the legislatively sanctioned portion of Hagelberg's settlement. ACCOSIF's statute-based pro tanto recoupment demand clearly is authorized by the terms of 85 O.S. 1991 § 44(a).18
¶ 9 Because the action cannot be characterized as one for subrogation, the two-year statute of limitations that would have begun to run from the date of the harmful event does not bar ACCOSIF's claim now before us.19
¶ 10 The terms of 12 O.S.1991 § 95(2) govern "an action upon a liability created by statute other than a forfeiture or penalty."20 According to the plain language of 85 O.S. 1991 § 44(a), an injured employee — who recovers from a third-party tortfeasor — is liable to the employer (or to the latter's insurer) who paid the compensation benefits. Hagelberg's liability to ACCOSIF is hence statute-based.21 The limitation to be applied is the three-year period prescribed by the terms of 12 O.S.1991 § 95(2) for one's pursuit of liability created by statute.22 ¶ 11 The liability of the tortfeasor's insurer to ACCOSIF also is governed by the same three-year time bar. This is so because the latter obligation is likewise rested on the terms of § 44(a).
¶ 12 ACCOSIF's claim against Hagelberg accrued when claimant became entitled to the proceeds (or part of the proceeds) of his settlement with the tortfeasor.23 The moment that recovery became Hagelberg's due marks the time at which ACCOSIF's right to reclaim its statutorily prescribed compensation payout arose by the terms of § 44(a).24
¶ 13 ACCOSIF's right to payment from the tortfeasor's insurer is prescribed by § 44 and reinforced by the theoretical underpinnings of Shebester and the trilogy of cases discussed supra.25 It is bolstered by the notice provisions to be found in 25 O.S.1991 §§ 10-14. The limitation bar was triggered when the tortfeasor's insurer, knowing of ACCOSIF's statutory recoupment claim,26 paid Hagelberg the sum due the latter according to the terms of their settlement. ACCOSIF's remedy would stand extinguished three years later. See 12 O.S.1991 § 95(2).
¶ 14 From the sparse record we are unable to divine on what theory recovery is sought from the tortfeasor (as distinguished from its insurer) qua co-obligor upon the liability in suit.27 We hence express no opinion concerning the nature of that claim but confine ourselves here to the single pronouncement: If ACCOSIF's action against the tortfeasor also lies, it, too, would be governed by the three-year statute that is triggered by a payout made to the employee by one with notice of the compensation carrier's statutory claim to the proceeds.
¶ 15 It is clear that none of the three defendants can be shielded from liability to ACCOSIF by the pleaded time bar which formed the nisi prius dismissal basis. The terms of § 44(a) provide that a workers' compensation carrier may recover its pro tanto share from a settlement between the tortfeasor and the claimant.28 This is the essence of the statutory obligation in suit. The tortfeasor's insurer cannot escape its responsibility to the plaintiff if its settlement remittance to the claimant was in fact a wrongful payout, i.e., one that was made with notice of ACCOSIF's § 44(a) claim.
¶ 16 Because ACCOSIF's claim was incorrectly perceived as a time-barred subrogation demand, the nisi prius dismissal must be reversed insofar as it affects all three defendants, and the cause be remanded for further proceedings.
¶ 17 A petition must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the pleader can prove no set of facts which would entitle him to relief.29 This is the so-called Conley30 test.
¶ 18 An appellate tribunal does not make first-instance rulings.31 It is the trial court's duty to determine on remand whether ACCOSIF's claim against each of the three defendants otherwise meets the Conley32 test.33
¶ 19 On certiorari previously granted upon separate petitions brought by the claimant, by the third-party tortfeasor, and by the latter party's insurer, the Court of Civil Appeals' opinion is vacated; the trial court's dismissal...
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