Blank v. Chawla

• Decision Date: 18 February 1984
• Docket Number: No. 55606,55606
• Citation: 234 Kan. 975,678 P.2d 162
• Parties: Thomas J. BLANK, Plaintiff, v. Mohinder P. CHAWLA, Appellee, v. BOEING MILITARY AIRPLANE COMPANY, and Aetna Casualty and Surety Company, Intervenors-Appellants.
• Court: Kansas Supreme Court

Page 162

678 P.2d 162

234 Kan. 975

Thomas J. BLANK, Plaintiff, v. Mohinder P. CHAWLA, Appellee, v. BOEING MILITARY AIRPLANE COMPANY, and Aetna Casualty and Surety Company, Intervenors-Appellants.

No. 55606.

Supreme Court of Kansas.

Feb. 18, 1984.

Syllabus by the Court

1. Ordinarily a party cannot appeal from a judgment unless it has a particular interest therein and is aggrieved or prejudiced thereby. Ordinarily its interest must be immediate and pecuniary.

2. Appeals are not for the purpose of settling abstract questions, however interesting

or important to the public generally, but only to correct errors injuriously affecting the appellant.

3. Where an employer is given the right to intervene or prosecute an action under K.S.A.1983 Supp. 44-504 to protect its subrogation rights, the intervening employer can appeal an adverse decision where the employee/plaintiff fails to appeal.

4. In an action for damages by an injured party against his co-employee in which the exclusive remedy provision of the Workmen's Compensation Act is asserted as a defense, it is held: (1) a co-employee is immune only if he or she would have been entitled to receive workers' compensation had she or he been injured in the same accident; and (2) since no genuine issues of material fact remained to be resolved, the trial court did not err in granting summary judgment.

5. A frivolous appeal has been defined as one in which no justiciable question has been presented and appeal is readily recognized as devoid of merit in that there is little prospect that it can ever succeed. Black's Law Dictionary 601 (5th ed. 1979).

Frederick L. Haag, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause and was on the brief for appellants. Jerry L. Griffith, Derby, was with him on the brief as attorney for plaintiff.

Kurt A. Harper, of Sherwood & Hensley, Wichita, argued the cause and was on the brief for appellee.

LOCKETT, Justice:

Thomas Blank, the plaintiff, brought this action against Mohinder P. Chawla on January 20, 1982, after he was struck by an automobile operated by Chawla, a fellow employee, as he was walking in the Boeing parking lot. Boeing, the employer, through its insurer, paid workers' compensation benefits to the plaintiff and intervened in the present action to protect and enforce its subrogation rights pursuant to K.S.A.1983 Supp. 44-504(b ). Boeing, as intervenor, appealed the trial court's granting summary judgment in favor of defendant based on the exclusivity of workers' compensation as the sole remedy for the plaintiff.

The trial court, prior to granting Chawla's motion for summary judgment, made the following findings of fact and conclusions of law:

"Findings of Fact

"1. On or about May 8, 1980, plaintiff and defendant were involved in an incident giving rise to this action.

"2. Said event occurred in the Boeing Military Aircraft Corporation parking lot 'P'.

"3. Plaintiff was, and is now, an employee of Boeing Military Aircraft Corporation.

"4. Plaintiff has received workers' compensation benefits as a result of said incident.

"5. Defendant was an employee of Boeing on or about May 8, 1980.

"6. Both plaintiff and defendant were leaving work at the time of the event giving rise to this action.

"7. The Boeing parking lot is on the premises of Boeing Military Aircraft Corporation.

"Conclusions of Law

"1. By operation of K.S.A. 44-508, both plaintiff and defendant were employed by Boeing for purposes of the Workers' Compensation Act. K.S.A. 44-508(f ) provides, in relevant part, that:

" 'An employee shall not be construed as being on the way to assume the duties of employment or having left such duties at a time when the worker is on the premises of the employer.'

"2. Plaintiff's injuries, if any, arise out of and in the course of employment.

"3. Compensation is payable under the Workers' Compensation Act.

"4. If defendant Mohinder P. Chawla had received personal injuries in the subject incident, he would have been entitled to collect workers' compensation benefits therefor.

"5. In light of conclusion no. 4, defendant is a person 'in the same [employ]' as plaintiff, and K.S.A. 44-504(a ) therefore provides immunity to defendant.

"6. Immunity is further provided pursuant to K.S.A. 44-501, which provides, in relevant part:

" 'Except as provided in the Workmen's Compensation Act, no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable thereunder.'

"7. Defendant is, therefore, by operation of the Workers' Compensation Act, immune from liability. Defendant's Motion should be, and the same hereby is, sustained on this ground.

"8. The Court therefore need not rule concerning the statute of limitations issue raised in defendant's Motion."

Chawla contends the intervenor, Boeing, lacks the statutory authority to appeal from the summary judgment granted against Blank, the plaintiff. Blank filed a negligence action against his fellow employee, Chawla. Boeing filed a motion and petition to intervene to protect its right of subrogation. K.S.A.1983 Supp. 44-504(b ) provides in part:

"In the event of recovery from such other person by the injured worker ... by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien."

The intervening employer's right to subrogation creates only a limited right as to active participation in the trial. In Gorrell v. Kansas Power & Light Co., 189 Kan. 374, 369 P.2d 342 (1962), a worker received workers' compensation from his employer and then brought a negligence action against a negligent third party, Kansas Power & Light Company. The insurance carrier of the worker's employer was permitted to intervene in the action pursuant to 44-504. Over objections of both plaintiff and defendant, the intervenor was allowed to participate in the trial. We held it was error for the trial court to permit the insurance carrier actively to participate in the trial. Where a worker has filed his action within one year after injury, before an assignment of the cause of action could occur pursuant to 44-504, his employer, as intervenor, cannot actively participate in the trial except when requested by the worker.

K.S.A.1983 Supp. 44-504 provides that Blank, the injured worker, must prosecute his action against the third party within one year from the date of injury. Failure on the part of Blank to bring the action within the one-year period operates as an assignment to the employer of any action in tort which the injured worker may have against any other party for the injury. The employer is allowed to prosecute and actively try the action in its employee's name when the employee fails to bring the action within the one-year period.

Here the question is whether the employer, after properly intervening to protect its right of subrogation, has a right to appeal an order granting summary judgment adverse to the employer's injured worker. Ordinarily a party cannot appeal from a judgment unless it has a particular interest therein and is aggrieved or prejudiced thereby. Ordinarily its interest must be immediate and pecuniary. McLeod v. Palmer, 96 Kan. 159, 150 P. 535 (1915). Appeals are not for the purpose of settling abstract questions, however interesting or important to the public generally, but only to correct errors injuriously affecting the appellant. Anderson v. Carder, 159 Kan. 1, 4, 150 P.2d 754 (1944).

In 4 C.J.S., Appeal & Error § 186, pp. 572-73, it is stated:

"One who has been allowed by order of the court to intervene in a cause, or who has been treated as a party thereto may appeal from a judgment, order, or decree therein affecting his interests. Although the judgment does not refer to them in terms, if it amounts to a finding adverse to them, persons who have been allowed to intervene may appeal. The right of appeal will be denied, however, where the intervener lacks the requisite interest or prejudice."

See 4 Am.Jur.2d, Appeal & Error § 175.

In Smith v. Henger, dba Henger Const. Co., 148 Tex. 456, 226 S.W.2d 425 (1950), the Supreme Court of Texas stated the employer's workers' compensation insurer which intervened in an action to protect its subrogation rights could appeal an adverse decision even if the employee/plaintiff failed to appeal.

Where an employer is given the right to intervene or prosecute an action under K.S.A.1983 Supp. 44-504 to protect its subrogation rights, the intervening employer can appeal an adverse decision where the employee/plaintiff fails to appeal. Here the intervening employer had the right to appeal the adverse decision against its employee/plaintiff.

Boeing contends the trial court erred in ruling as a matter of law the uncontroverted facts were sufficient to sustain a motion for summary judgment.

Summary judgment is proper only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact remaining, leaving the moving party entitled to a judgment as a matter of law. Panhandle Agri-Service, Inc. v. Becker, 231 Kan. 291, 295, 644 P.2d 413 (1982). In considering a motion for summary judgment, the party against whom the motion is directed is entitled to the benefit of all reasonable inferences and doubts which may be drawn from the facts under consideration. Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 341-42, 624 P.2d 971 (1981).

It is undisputed that Blank and Chawla were each employees of Boeing. Both were leaving work at the time the accident occurred in the employer's parking lot; the automobile driven by Chawla struck Blank as he was walking through the parking lot to his car....