Hemmesch v. Molitor, 82-589.

• Citation: 328 NW 2d 445
• Decision Date: 14 January 1983
• Docket Number: No. 82-589.,82-589.
• Parties: Glenda Marie HEMMESCH, widow of Robert E. Hemmesch, deceased, et al., Relators, v. Roger MOLITOR, d.b.a. Roger's Drywall and Continental Western Insurance Company, Respondents.
• Court: Supreme Court of Minnesota (US)

328 N.W.2d 445 (1983)

Glenda Marie HEMMESCH, widow of Robert E. Hemmesch, deceased, et al., Relators, v. Roger MOLITOR, d.b.a. Roger's Drywall and Continental Western Insurance Company, Respondents.

No. 82-589.

Supreme Court of Minnesota.

January 14, 1983.

Rinke, Noonan, Grote & Smoley and Gerald W. Von Korff, Sauk Rapids, for relators.

Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan and Gary M. Hagstrom, Minneapolis, for respondents.

Considered and decided by the court en banc without oral argument.

PETERSON, Justice.

At the request of Glenda Marie Hemmesch, widow of employee Robert Hemmesch, we issued a writ of certiorari to review a decision of the Workers' Compensation Court of Appeals which reinstated an order of the Workers' Compensation Division computing and awarding respondents a credit for their future compensation liability to Mrs. Hemmesch and the employee's children against a sum received by them in a settlement of their third-party wrongful death action. Although the parties have focused on other issues, we have concluded that the decision and order are of no effect and that the writ must be discharged because the Workers' Compensation Division did not have subject matter jurisdiction over respondents' claim for future credit.

On September 22, 1977, Robert Hemmesch and another employee were killed and two others were injured in an automobile accident in the course of their employment. The widows of the deceased employees and the injured employees brought actions against the drivers in the Stearns County District Court; respondent Continental Western Insurance Company, the employer's compensation insurer, intervened. The defendant's automobile liability insurers then deposited $100,000, the policy limits for their insureds, with the court for distribution among the plaintiffs, and the attorneys for the plaintiffs and for Continental entered upon negotiations to divide that sum. Eventually they reached an agreement under which Robert Hemmesch's widow and children were to receive $36,500, Continental was to receive $8,000, and the other plaintiffs were to receive varying amounts. Continental's attorney drafted an order and a subsequent amended order for disbursement in the manner agreed upon, and these orders were approved and signed by the district court in June 1979. Neither order reserved to the employer-insurer a right to claim future credit against the amounts allocated to the plaintiffs for future compensation liability. Nevertheless, Continental's attorney promptly requested the Workers' Compensation Division to compute such a credit pursuant to Minn.Stat. § 176.061 (1980). On October 11, 1979, the Division's subrogation manager issued a determination that Continental was entitled to future credit of $13,378.84 against the compensation due Hemmesch's widow and children.

Nearly 5 months later Mrs. Hemmesch appealed to the Court of Appeals. Following a hearing on September 2, 1980, that court remanded the matter for an evidentiary hearing before a compensation judge on the issues of whether the employer-insurer had intended to waive their claim for future credit and what the parties had intended in their agreement for distribution of the insurance proceeds which had been deposited for settlement of the third-party actions. Following this hearing the compensation judge found that the employer-insurer's attorney had not intended to waive future credit by accepting the $8,000 allocated by the settlement and that Mrs. Hemmesch's attorney did intend the settlement to eliminate any claim to such credit. He...