Indiana State Highway Commission v. White, 1270A283
| Decision Date | 24 May 1971 |
| Docket Number | No. 1,No. 1270A283,1270A283,1 |
| Citation | 269 N.E.2d 763 |
| Parties | INDIANA STATE HIGHWAY COMMISSION, et al., Appellants, v. Nancy E. WHITE, Appellee |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellants.
Jerrald A. Crowell, Bowman, Crowell & Swihart, Fort Wayne, for appellee.
Appellee-plaintiff's husband, while in the course of employment of the appellant-defendant, was struck and killed by the automobile of a third person. The appellee received a compensation award comprised of $43.20 for 450 weeks (not to exceed $20,000), and $1,586.85 covering funeral, medical, and hospital expenses. Subsequently, the appellee secured a settlement with the third party tort-feasor.
Because of disagreement regarding the amount of attorney's fees to be collected by appellee's attorney, a suit for declaratory judgment was filed against the appellant defendant, and eventually summary judgment for the appellee-plaintiff was granted. Appellant's motion to correct errors specified, inter alia, the recovery (attorney's fees) granted to appellee was excessive. This appeal is based on the overruling of the motion with the primary dispute revolving about the statutory interpretation of the following section of Burns' Ind.Stat.Ann. § 40--1213, I.C.1971, 22--3--2--13, which provides that after settlement with a third party tort-feasor:
Out of any reimbursement received by the employer or such employer's compensation insurance carrier pursuant to this section, they shall pay their pro rata share of all costs and reasonably necessary expenses in connection with such third party claim, action or suit and to the attorney at law selected by the employee or his dependents, a fee of twenty-five per cent (25%), if collected without trial, of the amount of benefits which benefits shall consist of the amount of reimbursements, after the expenses and costs in connection with such third party claim have been deducted therefrom, * * *.' (Emphasis added)
Appellee contends that attorney's fees of 25% were collectable from the total compensation award, whereas, the appellant says attorney's fees in the same percentage of the amount paid to appellee as of the time of the settlement are collectable.
It is with the latter contention that this court agrees. To hold otherwise would place a strain beyond the breaking point upon the word 'reimbursement' as used in the statute.
'The construction of all statutes of this state shall be by the following rules, unless such construction be plainly repugnant to the intent of the legislature or of the context of the same statute:
Burns' Ind.Stat.Ann. § 1--201, I.C.1971, 1--1--4--1. (Emphasis added).
Various dictionary definitions of the word 'reimburse' are as follows:
'To pay back, to make restoration, to repay that expended: to indemnify, or make whole * * *' Black's Law Dictionary, 4th Edition (1951), p. 1452.
'To pay back to someone: repay, * * *' Webster's Seventh New...
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Indiana State Highway Commission v. White
...Justice. An appeal in this case was taken to the Court of Appeals which rendered an opinion as Indiana State Highway Commission et al. v. White (1971), Ind.App., 269 N.E.2d 763, reversing the trial court judgment. The appellee below petitioned this Court for transfer. Oral argument was held......