Andreson v. Brink Elec. Const. Co., 19741

CourtSupreme Court of South Dakota
Writing for the CourtKONENKAMP; SABERS
Citation1997 SD 104,568 N.W.2d 290
PartiesRichard Troy ANDRESON, Claimant and Appellant, v. BRINK ELECTRIC CONSTRUCTION COMPANY, Employer and Appellee, and Transportation Insurance Company, and CNA Transcontinental Technical Services, Inc., Insurers and Appellees. . Considered on Briefs
Docket NumberNo. 19741,19741
Decision Date24 March 1997

Page 290

568 N.W.2d 290
1997 SD 104
Richard Troy ANDRESON, Claimant and Appellant,
Transportation Insurance Company, and CNA Transcontinental
Technical Services, Inc., Insurers and Appellees.
No. 19741.
Supreme Court of South Dakota.
Considered on Briefs March 24, 1997.
Decided Aug. 13, 1997.

Rick Johnson of Johnson, Eklund, Nicholson Peterson & Fox, Gregory, for appellant.

Rick Orr of Davenport, Evans, Hurwitz and Smith, Sioux Falls, for appellees.


¶1 Troy Andreson, a lineman for Brink Electric, was injured on the job when a Black Hills Power & Light Company (BHPL) truck hit him. He received workers' compensation benefits, but also won a $35,000 judgment in his tort action against BHPL. Rather than accepting the judgment amount, can he choose to seek continued workers' compensation? The Department of Labor held in the negative, and we affirm, finding Andreson effectively "collected" under SDCL 62-4-38 in obtaining a judgment against the tortfeasor, barring further workers' compensation recovery.


¶2 On March 11, 1993, Andreson was injured on duty when a BHPL employee, driving a company vehicle, crushed his legs between the bumpers of two trucks. On petition to the Department of Labor, he received approximately $36,000 in workers' compensation benefits, which included his medical expenses, $7,000 in temporary total disability benefits, and about $13,000 for permanent partial disability. His tort action against BHPL sought recompense for pain and suffering, $14,582.31 in medical bills, and economic losses his expert testified exceeded $500,000. We affirmed the jury's $35,000 award on appeal. Andreson v. Black Hills

Page 291

Power & Light Co., 1997 SD 12, 559 N.W.2d 886 (Andreson I ).

¶3 Dissatisfied with the verdict, Andreson continued with his administrative proceeding against Brink, started in March of 1995, seeking workers' compensation benefits for retraining and additional permanent partial disability. Brink's summary judgment motion rested on the following statute:

Whenever an injury for which compensation is payable under this title shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may at his option either claim compensation or proceed at law against such other person to recover damages or proceed against both the employer and such other person, but he shall not collect from both.

SDCL 62-4-38 (1993). The ALJ determined Andreson was barred from seeking further workers' compensation benefits. Additionally, as the injury occurred in 1993, the old SDCL 62-4-38, quoted above, was found to apply, not the amended 1994 version. On review, the circuit court affirmed, holding the statute in effect at the time of his injury prevented Andreson's further pursuit of workers' compensation benefits. Andreson appeals, questioning whether such a result is mandated under SDCL 62-4-38.

Standard of Review

¶4 We review administrative appeals under SDCL 1-26-36:

The court shall give great weight to the findings made and inferences drawn by an agency on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in light of the entire evidence in record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion....

See Iversen v. Wall Bd. of Educ., 522 N.W.2d 188, 191 (S.D.1994). Further, SDCL 1-26-37 provides that questions of law presented to an administrative agency are reviewed under a de novo standard. Tischler v. United Parcel Service, 1996 SD 98, p 23, 552 N.W.2d 597, 602 (quoting Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992)); In re Beaver Lake, 466 N.W.2d 163, 166 (S.D.1991). Statutory construction and issues of retroactive application are questions of law. US West Comm. v. Public Utilities Comm'n., 505 N.W.2d 115, 122 (S.D.1993); Hieb v. Opp, 458 N.W.2d 797, 800 (S.D.1990); Appeal of Schramm, 414 N.W.2d 31, 33 (S.D.1987).

Analysis and Decision

¶5 Double recoveries are barred under SDCL 62-4-38, but Andreson insists "collect," as used in this statute, means to "actually receive money from" both a tortfeasor and a workers' compensation employer. 1

Page 292

Even though he has an enforceable legal judgment against BHPL, Andreson believes he has not yet "collected," and offers the following: "To collect a debt or claim is to obtain payment or liquidation of it, either by personal solicitation or legal proceedings." Black's Law Dictionary 263 (6th ed 1990). This definition supports Brink's argument, however, and our determination that a judgment from a legal proceeding is indeed liquidation of a claim, therefore falling within the definition of "collect." See id. at 931 ("Liquidation" is "[t]he act or process of settling or making clear, fixed, and determinate that which before was uncertain or unascertained."); see also In re Hastie, 2 F.3d 1042, 1045 (10th Cir.1993)("collect" is payment or liquidation of a debt); Durland v. Durland, 62 Neb. 813, 87 N.W. 1048, 1049 (1901)("collect" means recovery).

¶6 While a claimant may "proceed against both the employer and such other [third party tortfeasor]," this phrase must be read with "but he shall not collect from both." SDCL 62-4-38 (emphasis added). Ellis v. City of Yankton, 526 N.W.2d 124, 126 (S.D.1995)(we construe related words in a statute together and derive its intent from reading it as a whole); Kelley v. Duling Enters., Inc., 84 S.D. 427, 433, 172 N.W.2d 727, 730 (1969)("In construing a particular word or term in a statute reference will be had to the meaning of the words with which it is associated."). See infra note 2. Andreson acknowledges BHPL's readiness to pay, but notes in his brief that although BHPL "has expressed a willingness and ability to pay the judgment, one must interpret the statute from a hypothetical claimant's perspective. Thus, one can easily imagine a situation wherein a third party tortfeasor declares bankruptcy...." We will leave that quandary for the day it becomes an actuality. Nothing in the record discloses BHPL's inability or disinclination to pay the judgment which was affirmed in Andreson I. Keegan v. First Bank, 470 N.W.2d 621, 624 (S.D.1991); Gottschalk v. Hegg, 89 S.D. 89, 95, 228 N.W.2d 640, 643-44 (1975)("[J]udicial machinery should be conserved for problems which are real and present or imminent, not squandered on problems which are abstract or hypothetical or remote.") (citation omitted).

¶7 We have suggested in the past that SDCL 62-4-38 is indicative of "South Dakota's public policy of avoiding duplicate recovery for the same injury." National Farmers Union Property & Cas. Co. v. Bang, 516 N.W.2d 313, 321 (S.D.1994); St. Paul Fire & Marine Ins. v. Farner, 648 F.2d 489, 491 (8th Cir.1981)(noting South Dakota's policy of avoiding duplicate recovery in a workers' compensation action). By amending SDCL 62-4-38 in 1994, our Legislature may have sought to soften the rigid aftereffect workers suffer when obtaining inadequate recoveries against tortfeasors. See 6 Larson, Larson's Workmen's Compensation § 73.00, at 14-354 (1997)(movement toward abolishing these types of rules). Yet we cannot bypass the former statute applicable to Andreson's claim which precludes further workers' compensation benefits after taking judgment against a third party. 2 See generally Benson v. Sioux

Page 293

Falls Med. & Surgical Clinic, 62 S.D. 324, 252 N.W. 864 (1934); Stratton v. Sioux Falls Traction Sys., 49 S.D. 113, 206 N.W. 466 (1925). He effectively "collected" when he obtained an enforceable judgment against BHPL for civil damages. If the jury verdict was not enough in his view, we nonetheless cannot reinterpret the statute to allow a prohibited double recovery. As we noted in Andreson I, the jury evaluated not only Andreson's half-million dollar claim for damages, but also his credibility, and determined $35,000 was appropriate. 1997 SD 12, 559 N.W.2d 886. This decision was supported by the evidence, Id. at p 14, 559 N.W.2d at 889-90, and, because a general verdict form was used, we will never know if the jury meant for its verdict to cover only part of his loss. 3 Though he is dissatisfied with the jury's damage award, he may not collect from both his employer and the tortfeasor.

¶8 We affirm the Department's decision in all respects.

¶9 MILLER, C.J., and AMUNDSON and GILBERTSON, JJ., concur.

¶10 SABERS, J., dissents.

SABERS, Justice (dissenting).

¶11 The majority opinion is inconsistent with precedent, workers' compensation treatises, and settled principles of statutory construction.

Each statute must be construed according to its manifest intent as derived from the statute as a whole, as well as other enactments relating to the same subject. Words used by the legislature are presumed to convey their ordinary, popular meaning, unless the context or the legislature's apparent intention justifies departure. When conflicting statutes appear, it is the responsibility of the court to give reasonable construction to both, and to give effect, if possible, to all provisions under consideration, construing them together to make them harmonious and workable. However, terms of a statute relating to a particular subject will prevail over general terms of another statute. Finally, we must assume that the legislature, in enacting a provision, had in mind previously enacted statutes relating to the same...

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