Empire Fire & Marine Ins. Co. v. Hill
| Decision Date | 24 April 1970 |
| Docket Number | No. 41936,41936 |
| Citation | 287 Minn. 58,176 N.W.2d 757 |
| Parties | EMPIRE FIRE & MARINE INSURANCE COMPANY, Appellant, v. Pete HILL, et al., Respondents. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
In a subrogation action by a workmen's compensation insurer against third-party tortfeasors, a pretrial order specifying the measure of, and limitation upon, the amount Jardine, Logan & O'Brien, and Jon L. Levy, St. Paul, for appellant.
of damages in the event of recovery does not dispose of any part of the merits of the action with finality and is not appealable of right under Rule 103.03, Rules of Civil Appellate Procedure.
Miller & Neary, Minneapolis, for respondents.
Heard before KNUTSON, C.J., and ROGOSHESKE, SHERAN, PETERSON, and FRANK T. GALLAGHER, JJ.
This appeal involves a subrogation action by a workmen's compensation insurer against third-party tortfeasors to recover damages for personal injury sustained by an employee. The action was instituted subsequent to payment by the insurer of compensation benefits to the employee under a settlement of his workmen's compensation claim, and also subsequent to the employee's prior settlement of his independent negligence action against the tortfeasors. We dismiss the appeal on procedural grounds.
On or about January 15, 1964, the employee, Cyrus Doughty, employed by Cab Line, Inc., as a cabdriver, suffered a workrelated injury when a vehicle, driven by defendant Michael Hill and owned by defendant Pete Hill, struck the rear of the cab he was driving. The employee sued defendants in tort for damages and on November 21, 1966, settled his claim for $5,000. Shortly thereafter, on November 30, 1966, the employee, claiming permanent total disability, filed a claim petition against his employer and plaintiff. On February 24, 1967, this claim was settled by the employee and plaintiff for $14,000. Plaintiff then instituted this subrogation tort action under Minn.St. 176.061.
At a pretrial conference, defendants, by oral motion, sought a ruling of the trial court concerning the measure of damages and the limitation of plaintiff's recovery in the event the latter prevailed on the issues of liability and also concerning their claim for a setoff against any recovery for the amount they had already paid to the employee. The trial court ordered that the measure of damages to be applied would be as in a common-law tort action of an employee against a third-party tortfeasor, but that plaintiff's recovery would be restricted to the amount actually due the employee under the Workmen's Compensation Act and that defendants would be entitled to a $5,000 setoff against the damages as found in the common-law action in the event of any award of damages against them. Plaintiff appeals from this order, contending that it is entitled to recover the full amount paid in...
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