Bi-State Development Agency v. Gurley, ED 81442.
| Citation | 101 S.W.3d 344 |
| Decision Date | 01 April 2003 |
| Docket Number | No. ED 81442.,ED 81442. |
| Parties | BI-STATE DEVELOPMENT AGENCY, Plaintiff/Appellant, and Sandra Bayless and Oscar Bayless, Plaintiffs/Respondents, v. Raymond GURLEY, Defendant. |
| Court | Missouri Court of Appeals |
Debbie S. Champion, Kevin J. Marquitz, St. Louis, MO, for appellant.
Steve D. Brooks, St. Louis, MO, for respondents.
Bi-State Development Agency (Bi-State) appeals from the judgment apportioning the settlement of Sandra and Oscar Bayless's (Plaintiffs) claims against Raymond Gurley (Defendant) under the workers' compensation subrogation statute, section 287.150, RSMo 2000. Because we find the trial court correctly apportioned the settlement between Plaintiffs and Bi-State, we affirm.
On August 21, 1995, Plaintiff Sandra Bayless, an employee of Bi-State, was injured when the bus she was driving was involved in an accident with Defendant. Plaintiff suffered personal injuries and Bi-State made workers' compensation payments to her totaling $5,543.32. On September 15, 1999, Bi-State filed suit under section 287.150 against Defendant to recover its workers' compensation payments. Approximately two months later, Plaintiffs sought leave to intervene in the lawsuit and the court granted them leave to intervene in early 2000. It is apparently undisputed that after Plaintiffs intervened, their attorney took over control of the litigation. Plaintiffs conducted discovery, including interrogatories and depositions.
In August 2001, Bi-State and Defendant agreed to settle Bi-State's claims for the full amount of its subrogation interest, $5,543.32. Bi-State petitioned the trial court to approve its settlement. The trial court denied approval, concluding that "[s]o long as attorneys for Plaintiff Bayless pursue her cause of action, their right to be compensated for time expended in the effort remains an unsettled issue."
On February 28, 2002, Plaintiffs agreed to settle their personal injury claim against Defendant for $7,000. Unfortunately, Plaintiffs and Bi-State were unable to agree on how to apportion the settlement proceeds under section 287.150. The parties submitted briefs and argument to the trial court, who entered a judgment apportioning the settlement proceeds. The court concluded that Plaintiffs had effected the settlement of Plaintiffs' claims. Applying the formula set forth in Ruediger v. Kallmeyer Bros. Service, 501 S.W.2d 56 (Mo. banc 1973), the court subtracted Plaintiffs' attorneys' fees ($2,333.34) and expenses ($203.90) from the $7,000, and concluded that the remaining amount "shall be allocated between Bi-State, the employer, and Sandra Bayless, the employee, in the same ratio that the total amount due the employer, $5,543.22 (sic), bears to the total amount recovered of $7,000.00." Bi-State appeals.
In its sole point on appeal, Bi-State argues that the trial court erred in its application of section 287.150 when it held Bi-State was required to contribute to the Plaintiffs' attorneys' fees and expenses. Bi-State contends the Plaintiffs did not effect the settlement alone, but rather, Bi-State contributed to effectuate the settlement, because it received a settlement offer of $5,543.32.
In Parker v. Laclede Gas Co., 770 S.W.2d 461, 462-63 (Mo.App. E.D. 1989), this Court explained in detail how settlement proceeds are to be apportioned under section 287.150. If the employer effected the recovery, then section 287.150.1 applies to the distribution of the recovery. Under that situation, the employer retains the amount of workers' compensation paid by it and the expenses of making the recovery, and pays the remainder to the employee. Id. at 462. However, if the employee effects the recovery, then section 287.150.3 controls the allocation. In this instance, the expenses and attorneys' fees of the employee are deducted from the recovery and the remaining amount is apportioned between the employee and employer in the same ratio that the amount due the employer bears to the total amount recovered. Id.; See, Ruediger, 501 S.W.2d at 59. If both the employer and the employee effect the recovery, then each party bears its own fees and expenses from its share of the recovery. Parker, 770 S.W.2d at 464.
Plaintiffs and Bi-State disagree on which provision applies. Plaintiffs assert that they effected the recovery and thus, section 287.150.3 controls. In contrast, Bi-State contends that Plaintiff did not effect the recovery of its subrogation amount, $5,543.32, because it separately negotiated a settlement for that amount. Therefore, Bi-State argues that both it and Plaintiffs effected the recovery, so each party should bear their own expenses and fees. Contrary to Bi-State's assertions, however, effecting the recovery does not equal negotiating a settlement. The word "effected" means "accomplished, brought to pass, completed or produced; carried to completion, or consummated." Maryland Cas. Co. v. General Elec. Co., 418 S.W.2d 115, 117 (Mo. banc 1967). In Maryland, the Supreme Court found that an employee that had not assisted in the investigation or preparation for trial had not effected the recovery. Id.
Here, Bi-State did not assist in the investigation or preparation for trial. It simply filed suit first. The trial court noted in its judgment that Bi-State had specifically written a letter to Plaintiffs' counsel, which stated:
... Bi-State's counsel had ...
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...2003).3 It applies when the employee and third-party tortfeasor effect a settlement as well. See id. See also Bi-State Development Agency v. Gurley, 101 S.W.3d 344 (Mo.App.2003); Parker v. Laclede Gas Co., 770 S.W.2d 461 (Mo.App. Employee acknowledges that the trial court followed the formu......
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