Ikerman v. Koch, 60822

Decision Date10 April 1979
Docket NumberNo. 60822,60822
Citation580 S.W.2d 273
PartiesVickie Sue Followell IKERMAN et al., Plaintiffs-Respondents, v. Gary KOCH, d/b/a Gary's Highway Shell and Gary's Broadway Shell and American States Insurance Company, a corporation, Defendants-Appellants.
CourtMissouri Supreme Court

Edward J. Wynne, St. Louis, for defendants-appellants.

Richard G. Steele, Cape Girardeau, for plaintiffs-respondents.

Charles A. Mogab, Richard L. Hughes, Larry W. Glenn, St. Louis, amicus curiae.

SIMEONE, Judge.

I.

This is an appeal from a judgment of the circuit court of Cape Girardeau County by appellants employer 1 and insurer 2 entered on April 18, 1977 reversing an award of the Labor and Industrial Relations Commission which in turn modified a referee's modified award which authorized a lump sum death benefit for two years to respondent, Mrs. Ikerman, the widow of a deceased employee on account of her remarriage without giving credit for the award to the appellants. Appellants, employer and insurer, appeal and contend the trial court erred in reversing the Commission's order because the order was based on competent and substantial evidence. After decision by the court of appeals, Eastern District, and upon application by the appellants, we granted transfer and now decide the case as on original appeal under the provisions of Art. V, § 10, Mo.Const.; Rule 83.03.

The facts of this case are not in dispute. The issue turns on whether the respondent, Mrs. Ikerman, is entitled to be paid a lump sum death benefit award under § 287.240(4)(a) 3 or whether the employer is entitled to a credit of such lump sum following a third party recovery. This case is unlike Yardley v. Gaylord Montgomery and U.S.F. & G., and Asher v. Killion Construction Co., decided this date, Mo. 580 S.W.2d 280. In this case the widow of a deceased employee effected a third party recovery and then remarried within the credit period. In Yardley and Asher, no third party recovery was effected.

II.

On January 8, 1975, Jerome Michael Followell was employed by Gary's Highway Shell in Cape Girardeau. He had married the respondent Vickie Sue Followell on October 24, 1968. Two boys were born of the marriage. Michael Jerome was born in 1969 and Jeffrey Scott was born in 1972.

On the evening of January 8, 1975, Mr. Followell was engaged in his duties as an employee for Gary Koch. While attaching a wrecked car onto his employer's wrecker he was struck by a pick-up truck driven by an uninsured third party. He received serious injuries from which he died on the same date.

A claim for compensation was filed with the Division of Workmen's Compensation and the employer and insurer filed their answer to the claim. American States began making compensation payments of $64.00 per week commencing January 9, 1975 and made such payments through May 28, 1975. The total payments amounted to $1,280.00. American States also paid a funeral allotment of $800.00, a hospital bill of.$203.60 and ambulance service of $45.00. 4

On May 24, 1975 the widow settled a wrongful death action which had been filed against the negligent third party for $29,500. After deducting attorneys fees in the amount of $9,833.33, a net recovery of $19,666.67 5 was had.

On January 15, 1976 a hearing was held before the referee in Cape Girardeau. The employer-insurer admitted that (1) the employer operated under the provisions of the workmen's compensation law, (2) the employer was insured, and (3) Jerome Michael Followell was an employee and sustained a fatal injury by accident arising out of and in the course of his employment. The parties stipulated the rate of compensation to be $64.00 per week. At the hearing, the parties recognized that appellant American States was entitled to a credit of $19,666.67 by virtue of the third party action at a weekly rate of $64.00 per week or for 307.29 weeks. 6 ". . . And, 307.29 weeks from January 8, 1975 would mean that compensation should start in again on a monthly basis on or about December 1, 1980." At the hearing dependency was proved, and on January 20, 1976 the referee made his award. In his findings of fact, he found that Jerome Michael Followell sustained a fatal accident on January 8, 1975 arising out of and in the course of his employment and that he was survived by his widow Vickie Sue Followell and two minor children. He further found that the widow and children were total dependents and that the ". . . dependents are entitled to distribution of death benefits . . ." as follows: $48.00 per week to the widow, Vickie Sue and $8.00 per week for each of two children for a total of $64.00.

The referee further found (1) that the widow and children have effected a third party recovery of $29,500.00 less an attorney fee of $9,835.33 (sic) resulting in a net recovery of $19,666.67, (2) that the ". . . employer-insurer are entitled to a credit of said amount as advance payment of compensation for 307.29 weeks of death benefits at the rate of $64.00 per week; therefore employer-insurer are hereby directed to commence payment of death benefits to said dependents on December 4, 1980, . . ."; (3) that the employer-insurer paid $2,328.60 prior to the third party recovery and that the widow repaid that amount.

The referee also stated ". . . In the event of remarriage (of the widow) a lump sum equal to death benefits due for a period of two years shall be paid to said widow. In event of either death or remarriage the periodic death benefits shall cease unless there are other total dependents entitled to any death benefit as provided by Section 287.240(4)(A), VAMS."

Some few days after the referee's award and on January 31, 1976, Vickie Sue Followell married Donald Lee Ikerman in Cape Girardeau. 7

Upon application to the Division of Workmen's Compensation to modify the award of January 20, 1976 on account of the remarriage of Mrs. Followell the referee on February 6, 1976, modified his award as follows:

(1) all death benefits accruing to the widow after December 4, 1980 are terminated as of February 1, 1976.

(2) the death benefits in the weekly sum of $48.00 due the widow on December 4, 1980 be paid to the two sons, Michael Jerome and Jeffrey Scott equally, ". . . so that said children will receive with the sum of $8.00 awarded to each of them by the award of January 20, 1976, the additional sum of $24.00 each, making a total weekly payment of $32.00, said payments to commence December 4, 1980."

(3) the death benefits due the children shall be paid to Vickie Sue Followell Ikerman, their natural mother for their support, maintenance and education.

(4) "It is further ordered that Vickie Sue Followell Ikerman be paid a lump sum equal to death benefits due for a period of two years ($48.00 X 104 weeks = $4,992.00) on account of her remarriage to Donald Lee Ikerman, January 31, 1976."

On February 24, 1976 appellants, Gary Koch and American States, filed an application for review with the Industrial Commission alleging that the referee's modified award in paragraph 4 ordering a lump sum for a period of two years following her remarriage was erroneous.

On December 21, 1976, the Labor and Industrial Commission unanimously modified the referee's modified award relating to the lump sum remarriage payment. 8 As to the lump sum remarriage payment the Commission held:

". . . (4) As provided by Section 287.240(4) Revised Statutes of Missouri, 1969, (sic) the widow is entitled to a lump sum payment of 104 weeks times her weekly benefit amount of $48.00 per week immediately after the date of her remarriage. However, Section 287.150(2) Revised Statutes of Missouri, 1969 provides for a credit upon a third party recovery for all sums paid or payable under Chapter 288 (sic) . . . . The Commission believes that the employer- insurer is entitled to a credit against the lump sum in this case because the lump sum payment upon remarriage is merely an advancing of the weekly benefit amount due the widow and the remarriage occurred on January 31, 1976 within the period in which the employer-insurer is entitled to a credit due to a third party recovery. Thus, the widow is entitled to $4,992.00 lump sum payment and the employer-insurer is entitled to a credit of $4992.00 as a result of the third party recovery against said lump sum payment."

In effect the ruling of the Commission is that although the respondent Mrs. Ikerman is entitled to the lump sum payment, the employer-insurer is entitled to a credit in the amount of the lump sum as a result of the third party recovery. In effect, therefore, the Commission held that since the remarriage occurred during the third party recovery credit period the employer-insurer is entitled to a credit of the lump sum remarriage payment. The Commission interpreted § 287.240(4) to be merely "an advancing of the weekly benefit amount due the widow . . ." in the two years following her remarriage, hence there was no obligation to pay the lump sum remarriage benefit to Mrs. Ikerman.

We interpret the order of the Commission as stating (1) although Mrs. Ikerman is entitled to the lump sum remarriage payment there is no obligation on the part of the employer-insurer to pay it to her because (a) section 287.150(2) provides that the employer-insurer is entitled to a credit for all sums paid or payable upon a third party recovery, (2) the employer insurer is entitled to a credit of the lump sum remarriage payment because it is an advancing of the weekly benefit amount due the widow, and (3) since the remarriage occurred during the third party recovery credit period the employer-insurer is entitled to a credit of the lump sum remarriage benefit.

In short, the Commission held that although Mrs. Ikerman is entitled to a lump sum remarriage payment since there was a third party recovery, the employer-insurer is entitled to a credit of the lump sum.

On January 5, 1977, Mrs. Ikerman appealed to the Circuit Court of Cape...

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