Guyette v. West Bend Mut. Ins. Co.

• Decision Date: 12 May 1981
• Docket Number: No. 80-1878,80-1878
• Citation: 307 N.W.2d 311,102 Wis.2d 496
• Parties: Richard F. GUYETTE. Plaintiff-Appellant, Mary Ann Guyette, Plaintiff, v. WEST BEND MUTUAL INSURANCE COMPANY, Respondent-Intervenor, Carriers Insurance Company, George Zahn, Clairmont Transfer Company, American Family Insurance Company, and Joseph J. Ramminger, Defendants.
• Court: Wisconsin Court of Appeals

Page 311

307 N.W.2d 311

102 Wis.2d 496

Richard F. GUYETTE. Plaintiff-Appellant Mary Ann Guyette, Plaintiff, v. WEST BEND MUTUAL INSURANCE COMPANY, Respondent-Intervenor Carriers Insurance Company, George Zahn, Clairmont Transfer Company, American Family Insurance Company, and Joseph J. Ramminger, Defendants.

No. 80-1878.

Court of Appeals of Wisconsin.

Submitted on Briefs March 25, 1981.

Opinion Released May 12, 1981.

Opinion Filed May 12, 1981.

Review Denied ^*.

Roger W. Clark of Herrling, Clark, Hartzheim & Siddall, Ltd., Appleton, for plaintiff-appellant.

Mickiewicz, Sager & Sharpe, S. C., Fond du Lac, for respondent-intervenor.

Before DECKER, C. J., VOSS, P. J., and SCOTT, J.

VOSS, Presiding Judge.

This is an appeal from a judgment and an order providing for the distribution of proceeds following a jury verdict in favor of Mr. Guyette awarding him $96,000 for injuries sustained in an automobile collision. The accident took place during the course of his employment. Mr. Guyette challenges the distribution and objects to the participation of West Bend Mutual Insurance Company, a worker's compensation insurance carrier, in the proceeds of his lawsuit. We affirm the trial court's determination.

On March 4, 1976, in Sheboygan county, Richard Guyette was severely injured in a collision occurring during his employment as a truckdriver for the A.F. Gelhar Company. The West Bend Mutual Insurance Company was the worker's compensation insurance carrier for the A.F. Gelhar Company. West Bend paid Guyette temporary total disability and permanent partial disability payments. In addition, payments were made for medical expenses. These payments totaled in excess of $37,000.

Guyette commenced an action against two alleged tort-feasors and their insurance companies on February 14, 1978. Shortly thereafter, West Bend served formal notice of its claim for reimbursement under sec. 102.29, Stats., ¹ upon Mr. Guyette's attorney. West Bend Mutual did not join in the third party action nor did it contribute to its prosecution or cost.

On June 3, 1980, Guyette moved the court for an order excluding West Bend from participation in either his lawsuit or the proceeds thereof. Guyette argued that West Bend had lost its right to participate when it failed to take action within the time allowed under the Wisconsin three year statute of limitations for such actions. The motion was denied.

Following trial, Guyette renewed his motion to exclude West Bend Mutual from participation in the distribution of the $96,000 jury award. The motion was again denied. Judgment was entered on the verdict, and the court ordered the division of the proceeds in compliance with sec. 102.29, Stats.

Guyette argues that the three year statute of limitations for personal injury actions bars West Bend Mutual Insurance from participation in the distribution of the proceeds. The statute of limitations relative to personal injury actions is established by sec. 893.54, Stats. "In Wisconsin the running of the statute of limitations not only bars recovery but it completely extinguishes the party's cause of action." Heifetz v. Johnson, 61 Wis.2d 111, 124, 211 N.W.2d 834, 841 (1973). Guyette contends that since West Bend Mutual failed to join suit or in any way prosecute its cause, only giving notice of intent to participate in the proceeds, the statute of limitations bars West Bend's receipt of any proceeds of the litigation.

Section 102.29, Stats., vests in the employer or compensation carrier a "right to maintain an action independently of the compensation beneficiary." London Guarantee & Accident Co. v. Wisconsin Public Service Corp., 228 Wis. 441, 445, 279 N.W. 76, 77 (1938). In addition to granting an employer or worker's compensation carrier a right to maintain an independent action, however, the statute also provides an employer or compensation carrier with a second option. An employer or worker's compensation carrier may, in the alternative, simply provide statutory notice as provided for in sec. 102.29(1), Stats., and:

the liability of the tort-feasor shall be determined as to all parties having a right to make claim, and irrespective of whether or not all parties join in prosecuting such claim, the proceeds of such claim shall be divided as follows: After deducting the reasonable cost of collection, one-third of the remainder shall in any event be paid to the injured employe or the employe's personal representative or other person entitled to bring action. Out of the balance remaining, the employer or insurance carrier shall be reimbursed for all payments made by it, or which it may be obligated to make in the future ....

When the plain meaning of the words in a statute are apparent, a court need not resort to either construction or case law to bolster its recognition of that plain meaning. Moherek v. Tucker, 69 Wis.2d 41, 45, 230 N.W.2d 148, 150 (1975); Amidzich v. Charter Oak Fire Insurance Co., 44 Wis.2d 45, 51, 170 N.W.2d 813, 816 (1969). Where the statutory language is clear, no judicial rule of construction is permitted, and we must arrive at the intent of the legislature by giving the language its ordinary and accepted meaning. City of West Allis v. Rainey, 36 Wis.2d 489, 495, 153 N.W.2d 514, 517 (1967).

Section 102.29, Stats., clearly provides that in order for an employer or insurance carrier to take part in the distribution of proceeds, it is not necessary that the employer or insurance carrier join the action or file its own lawsuit. An employer or compensation insurance carrier can forego participation in litigation and still not waive its participation in the division of damages as may be awarded.

We believe that in this case, the statute of limitations was tolled by the commencement of Guyette's third party claim within the limitation period. The statute itself provides that nothing need be done by an employer or insurance carrier to obtain participation in the proceeds from such a third party action other than to provide the required statutory notice. If we were to adopt Guyette's reasoning concerning this issue, sec. 102.29(1), Stats., would be rendered ineffective since insurance carriers and employers would be forced to file or join a lawsuit to protect their right to reimbursement. Clearly the language of the statute suggests an intent of the legislature to provide insurance carriers and employers with an option to not participate in any sort of litigation and still participate in the proceeds of a third party suit.

The conclusion that, if notice is given, all parties having a right to make a claim should receive sec. 102.29 distribution, even if not joined as parties, is supported not only by the statutory language but also by case law construing sec. 102.29(1), Stats. In Holmgren v. Strebig, 54 Wis.2d 590, 196 N.W.2d 655 (1972), the supreme court rejected an argument that an insurer was an indispensable party by virtue of payments made by it as a worker's compensation insurer. The court stated: "Under the Wisconsin Statutes ... the compensation insurer may intervene or prosecute a third-party claim, but there is no requirement that the compensation insurer be joined as a party plaintiff." Id. at 598, 196 N.W.2d at 659 (emphasis in original).

The Holmgren decision relied on Johannsen v. Peter P. Woboril, Inc., 260 Wis. 341, 51 N.W.2d 53 (1952), as support for the resolution of the controversy. In Johannsen, a third party tort-feasor sought to implead the employer in its status as a worker's compensation self-insurer. The supreme court agreed with the trial court's refusal to grant the motion by stating:

While (the worker's compensation self-insurer) had a substantial interest in the amount of damages the plaintiff should recover and by sec. 102.29(1), Stats., has been given the right to participate in the plaintiff's action to protect that interest, it had served notice that it waived that right. The injured employee's right of action and the amount of damages to which he is entitled are theoretically unaffected by the statutory disposition of the sum which the jury finds will compensate him for his injuries. Clark v. Chicago, M., St.P. & P.R. Co. (1934), 214 Wis. 295, 252 N.W. 685. The presence of his employer in his action against the tort-feasor is unnecessary to the determination of the issues and, as the employer had waived its right to participate, we find no error in the denial of the motion to make the employer a party.

Id. at 345-46, 51 N.W.2d at 55 (emphasis in original). The Johannsen court further noted that the employer's decision not to join...