Landrum v. National Union Ins. Co.
| Decision Date | 13 February 1996 |
| Docket Number | No. 82323,82323 |
| Citation | 912 P.2d 324,1996 OK 18 |
| Parties | William LANDRUM and Wanda Landrum, Appellees, v. NATIONAL UNION INSURANCE COMPANY, Appellant, v. DEHAAN GREENHOUSES, Vickie Dehaan d/b/a Dehaan Greenhouses, and Rollins Leasing Corporation, Defendants. |
| Court | Oklahoma Supreme Court |
Certiorari to the Oklahoma Court of Appeals, Division 1.
Jerry V. Beavin, and Steve A. Weeks, Oklahoma City, for appellant.
Richard D. Gibbon, Tulsa, for appellees.
FACTS AND PROCEDURAL BACKGROUND
In January, 1990, Appellee, Wanda Landrum, and her husband William Landrum, brought suit against defendants Dehaan Greenhouses, and Rollins Leasing Corporation, for damages arising from a personal injury Mrs. Landrum had sustained. Mr. Landrum's claim was based on loss of consortium, and is not material to the issues before us today. Mrs. Landrum was injured while working for Wal-Mart Stores, Inc., and had National Union moved to intervene in the Landrum's suit because it had paid $50,338.67 in workers' compensation benefits to or on behalf of Mrs. Landrum, and because 85 O.S.1981 § 44 gave it a right of subrogation to any amount Mrs. Landrum recovered from the defendants. 1 Thus, said National Union, it was entitled to intervene as a matter of right under 12 O.S. Supp.1984 § 2024. 2 The trial court agreed, and granted National Union's motion to intervene.
earlier received workers' compensation, which was paid by Appellant, National Union Insurance Company, Wal-Mart's workers' compensation insurer.
Mrs. Landrum did not object to National Union's motion to intervene. She did, however, object to the active participation of National Union's counsel in the jury trial because she feared that informing the jury of her compensation claim would prejudice her. The trial court sustained Mrs. Landrum's objection to National Union's active participation in the jury trial, although it did allow National Union's counsel to be present during the trial.
The jury returned a verdict for Mrs. Landrum for $80,000, which the trial court apportioned between Mrs. Landrum and National Union as follows: 3
National Union claimed the trial court's computation was erroneous for two reasons: (1) National Union should not have to bear any portion of Mrs. Landrum's attorneys' fees because National Union had its own counsel and was not allowed to participate in the jury trial of the issues between Mrs. Landrum, and the defendants, and (2) the trial court failed to allow National Union to recover its proportionate share of prejudgment interest that accrued on the verdict under 12 O.S. Supp.1986 § 727. 6 Section § 727 provides for prejudgment interest on personal injury verdicts at the average treasury bill rate for the year preceding the verdict, plus four percentage points, "from the date suit was commenced to the date of verdict." The record does not reflect the amount of prejudgment interest that accrued here. It does reflect, however, that suit was filed on January 5, 1990, and the verdict was returned March 19, 1993. The prejudgment interest rate on verdicts returned in 1993 was 7.42%. Apparently, then, the total prejudgment interest on Mrs. Landrum's $80,000 verdict was, in round figures, about $19,000 ($80,000 X 7.42% X 3.2 years).
I. Did the trial court err in sustaining Mrs. Landrum's objection preventing National Union from actively participating in the jury trial on the merits of Mrs. Landrum's action against the defendants?
II. Did the trial court err in deducting an attorneys' fee from National Union's award, and in setting the amount of the attorneys' fee award at the amount called for by Mrs. Landrum's contingent fee contract with her lawyer?
III. Did the trial court err in refusing to grant National Union a proportionate share of the prejudgment interest?
We answer no to Issues I and II, and yes to Issue III.
National Union's claimed right to participate in the jury trial is based on our opinions in Prettyman v. Halliburton Co., 841 P.2d 573, 577 (Okla.1992), and State ex rel. Howard v. Oklahoma Corporation Commission, 614 P.2d 45, 50 n. 6 (Okla.1980). Neither opinion applies to the facts before us today.
In Prettyman we held that a subrogated workers' compensation carrier has a right to recover its pro-rata proportion of the compensation paid according to the formula set out there, and used by the trial court here. In this appeal there is no dispute that National Union has such a right. Further, the right of an insurer to participate in an injured worker's jury trial against third parties was not an issue in Prettyman, as it dealt only with a settlement.
In Howard, we held that the Corporation Commission had the right to be represented Mrs. Landrum recognized National Union's subrogation rights. The only disagreements were over whether National Union should pay 40% of its recovery to Mrs. Landrum's lawyer, under the terms of Mrs. Landrum's contingent fee contract, and whether National Union should receive a pro-rata portion of any prejudgment award. At no time did National Union present any issue in which the defendants to Mrs. Landrum's action had any interest. In fact, National Union's purpose in its conduct of the litigation, especially its insistence that its lawyer participate in the jury trial, seems to have been to avoid having to pay a 40% attorneys' fee to Mrs. Landrum's lawyer. For reasons we will discuss in section II of this opinion, under the facts before us, National Union was required by law to pay such a fee.
by its own counsel, rather than by the Attorney General, "inasmuch as the views of the Commission's attorneys are at variance with those of the Attorney General. " [Emphasis added.] 614 P.2d at 50. Here, National Union does not contend that it had any disagreement with Mrs. Landrum concerning the merits of her claims against the defendants. Indeed, there appears to have been an identity of interest between National Union and Mrs. Landrum on the merits of the action, which was to establish liability against the defendants and to obtain a damage award at least large enough to fully compensate National Union for its subrogation claim
As noted, National Union intervened in Mrs. Landrum's suit as a matter of right under 12 O.S. Supp.1984 § 2024 without objection by Mrs. Landrum. National Union contends that because it was a party it had an undeniable right to participate in the jury trial of Mrs. Landrum's suit for damages against the defendants. We disagree.
National Union had the right to intervene in Mrs. Landrum's suit because doing so protected National Union's right to its share of any recovery realized by Mrs. Landrum from the defendants. National Union achieved that goal when the trial court granted its motion to intervene.
National Union equates its right to intervene with its claimed right to participate in Mrs. Landrum's jury trial. National Union assumes that once its right to intervene was established, its right to participate in the jury trial was also established. This is incorrect. National Union's right to intervene was a separate issue from its claimed right to participate in the jury trial of Mrs. Landrum's damage suit. In its comments to 12 O.S. Supp.1984 § 2024, the Civil Procedure Committee of the Oklahoma Bar Association said, 7
Title 12 O.S. § 2018 subd. D gave the trial court discretion to require any issues between National Union and Mrs. Landrum to be tried separately from the jury trial of Mrs. Landrum's claims against the defendants, if doing so would "avoid prejudice." Id. We will reverse the discretionary ruling of a trial court as to whether there should be separate trials of issues only where there has been shown a clear abuse of discretion. Faulkenberry v. Kansas City Southern Ry. Co., 661 P.2d 510, 513 (Okla.1983) certiorari denied 464 U.S. 850, 104 S.Ct. 159, 78 L.Ed.2d 146. There we said, [Emphasis added.] No such abuse has been shown here.
The cases cited by National Union in its Petition for Certiorari to the effect that a subrogated workers' compensation insurer is a real party in interest, are immaterial here. Travelers Insurance Co. v. Leedy, 450 P.2d 898 (Okla.1969); Aetna Casualty & Surety Company v. Associates Transports, Inc., 512 P.2d 137 (Okla.1973). That National Union National Union's rights were totally based on subrogation, and subrogation is an equitable remedy. Consequently, National Union had no right to a jury trial. Butcher v. McGinn, 706 P.2d 878, 880 (Okla.1985). There we said, "In an equitable action, trial by jury is not a matter of right." Other than claiming that it would otherwise not have had to pay part of Mrs. Landrum's attorneys' fee, National Union does not claim that it was prejudiced by its inability to participate in the jury trial.
was a real party in interest did not deprive the trial court of its right--and obligation--to decide in its discretion whether National Union's participation in Mrs. Landrum's jury trial against the defendants might prejudice Mrs. Landrum.
The trial court acted within its discretion under 12 O.S. 1881 § 2018 subd D. It did not abuse that discretion when it decided to sustain Mrs. Landrum's objection to National Union's participation in Mrs. Landrum's jury trial.
National Union claims that its portion of the verdict in this case should not have to bear a 40% attorneys' fee because National Union "made its own preparations for trial through its own counsel." This, however, does not excuse National Union from its obligation to pay such a fee.
Title 85 O.S.1991 § 44(a), note...
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