Koughn v. Utrad Industries, Inc., 2

• Decision Date: 30 November 1971
• Docket Number: No. 2,2
• Citation: 275 N.E.2d 572,150 Ind.App. 110
• Parties: Robert J. KOUGHN, Appellant, v. UTRAD INDUSTRIES, INC., Appellee. No 571A98
• Court: Indiana Appellate Court

Page 572

275 N.E.2d 572

150 Ind.App. 110

Robert J. KOUGHN, Appellant, v. UTRAD INDUSTRIES, INC., Appellee.

No 571A98.

Appellate Court of Indiana, Division No. 2.

Nov. 30, 1971.

William N. Mills, Bangs, Mills & Rollo, Huntington, for appellant.

Geoffrey Segar, Ice, Miller, Donadio & Ryan, Indianapolis, for appellee.

HOFFMAN, Chief Justice.

In this appeal, appellant seeks to set aside and vitiate the award of the Full Industrial Board of Indiana entered on November 21, 1968. On May 6, 1971, the Full Industrial Board of Indiana entered an order denying plaintiff-appellant's motion to set aside and vitiate such award. Appellant's sole assignment of error is that 'the award of the full Industrial Board of Indiana dated the 6th day of May, 1971, is contrary to law.'

Appellee's verified motion to dismiss plaintiff-appellant's motion to set aside and vitiate award, which is in the record before us, reveals that employee-appellant made a $25,000 settlement with a third party. Such settlement is acknowledged in the briefs filed herein by both appellant and appellee, and was confirmed by counsel for the litigants in oral argument.

Under the express language of IC 1971, 22--3--2--13, Ind.Ann.Stat. § 40--1213 (Burns' 1971 Supp.) this settlement bars any further compensation from the employer, or such employer's compensation insurance carrier. Section 40--1213, supra, reads, in pertinent part, as follows:

'Liability of third person--Subrogation of employer--Lien on award to employee--Notice to employer if employee sues--Settlements--When action barred--Costs--Attorney fees--Release and satisfaction.--Whenever an injury or death for which compensation is payable under this act (§§ 40--1201--40--1414), shall have been sustained under circumstances creating in some other person than the employer and not in the same employ a legal liability to pay damages in respect thereto, the injured employee, or his dependents in case of death, may commence legal proceedings against such other person to recover damages not-withstanding such employer's or such employer's compensation insurance carrier's payment of or liability to pay compensation under this act. In such case, however, if the action against such other person is brought by the injured employee or his dependents and judgment is obtained and paid, and accepted or settlement is made with such other person, either with or without suit, then from the amount received by such employee or dependents there shall be...