Bill Hodges Truck Co., Inc. v. Humphrey, 62763
| Decision Date | 20 November 1984 |
| Docket Number | No. 62763,No. 1,62763,1 |
| Citation | 704 P.2d 94,1984 OK CIV APP 55 |
| Parties | 1984 OK CIV APP 55 BILL HODGES TRUCK CO., INC., Own Risk, Petitioner, v. William HUMPHREY and the Workers' Compensation Court, Respondents |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Grove & Grove, Robert G. Grove, John G. Spires, Oklahoma City, for petitioner.
George Gay, Lawrence H. McMillin, Oklahoma City, for respondents.
The issue is whether the workers' compensation carrier is entitled to set-off against a disability award to an injured worker in the amount recovered by the worker against his uninsured motorist coverage. The Workers' Compensation Court denied the set-off. We agree.
Respondent (Humphrey) was struck by a vehicle driven by a co-employee in Petitioner's (Hodges) parking lot. He was awarded by the Workers' Compensation Court permanent partial disability benefits which are not contested in this appeal. Humphrey also recovered by settlement twelve thousand dollars in uninsured motorist benefits from his automobile insurance carrier because the co-employee had no liability insurance.
The Oklahoma Supreme Court has not decided this question but has ruled on the converse. In Chambers v. Walker, 653 P.2d 931 (Okl.1982), the Court decided whether an uninsured motorist carrier should be allowed set-off in the amount of workers' compensation benefits recovered by its insured. The uninsured motorist carrier argued in Chambers that it should be allowed set-off in the amount plaintiff would have lost through subrogation of the workers' compensation carrier, since the net recovery to plaintiff would be the same. The Court denied the set-off, reasoning that application of the net recovery theory would result in a windfall to the insurer in derogation of the clear legislative intent in favor of uninsured motorist coverage. We find that the same public policy considerations apply here.
In 85 O.S. 1981 § 45 the legislature has manifested a clear intent that a worker who takes steps to assure his financial security shall not be penalized. Section 45 provides:
No benefits, saving or insurance of the injured employee, independent of the provisions of this act shall be considered in determining the compensation or benefit to be paid under this act.
Hodges urges that uninsured motorist benefits are not included in § 45 because the worker's right to recover under the uninsured motorist policy is a mutant of his right in tort to which Hodges is subrogated. 85 O.S. 1981 § 44.
Hodges cites 36 O.S. 1981 § 3636(B) which provides in pertinent part:
[The uninsured motorist policy] shall provide coverage therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom. [Emphasis added]
Hodges interprets the words "legally entitled to recover" to mean that Humphrey must be able to proceed against his fellow employee in tort in order to collect uninsured motorist benefits.
Hodges' theory creates an inevitable conflict between the Workers' Compensation Act and the Uninsured Motorist Act. By exercising his right to recover under the Workers' Compensation Act, Humphrey has abrogated his right to proceed in tort against his fellow employee. 85 O.S. 1981 § 122.
Hodges, whose only asserted interest in Humphrey's rights vis-a-vis his uninsured motorist carrier is Hodges' subrogation to the proceeds, does not argue that Humphrey must forego one of these rights. Rather, Hodges contends that public policy, as expressed by the Oklahoma Supreme Court in Chambers v. Walker, supra, requires that Humphrey's right to collect under the uninsured motorist policy survive despite § 122. Hodges suggests that the only way to rectify the conflict is to allow the workers' compensation carrier subrogation to the uninsured...
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