Niegos v. Arcelor Mittal Burns Harbor LLC
Decision Date | 14 December 2010 |
Docket Number | No. 93A02-1007-EX-762,93A02-1007-EX-762 |
Parties | KATHY NIEGOS, Appellant/Petitioner, v. ARCELOR MITTAL BURNS HARBOR LLC, f/k/a ISG BURNS HARBOR LLC, Appellee/Respondent. |
Court | Court of Appeals of Indiana |
APPEAL FROM THE FULL INDIANA WORKER'S COMPENSATION BOARD
The Honorable Linda P. Hamilton, Chairperson
FOR PUBLICATION
ATTORNEYS FOR APPELLANT:
W. RUSSELL SIPES
TINA M. BENGS
Hoeppner Wagner & Evans LLP Merrillville, Indiana
Appellant/Petitioner Kathy Niegos appeals from the Indiana Worker's Compensation Board's ("the Board") dismissal of her claim, pursuant to the Occupational Disease Act ("the ODA"), against ArcelorMittal Burns Harbor LLC, her late husband's former employer. Niegos contends that the Board erroneously concluded that the "absolute bar" provision of ODA should apply when she has resolved some, but not all, claims against third-party defendants. ArcelorMittal counters that receipt of any third-party settlement relieves it of any liability under the ODA and that Niegos's failure to notify it before accepting third-party settlements forfeits her rights under ODA. Concluding that Niegos's failure to notify ArcelorMittal before entering into third-party settlements is fatal to her ODA claim, we affirm.
Daniel Niegos died of lung cancer on July 18, 2004, allegedly contracted as a result of asbestos exposure while employed by ArcelorMittal. (Appellant's App. 13). On November 15, 2005, Niegos filed an ODA claim on behalf of her deceased husband. (Appellant's App. 11). In addition, Niegos filed a civil action against thirty-six third-party defendants who manufactured, sold, or used the asbestos products that allegedly caused Daniel's lung cancer. (Appellant's App. 13). As of December 10, 2009, Niegos had settled with several of the third-party defendants, receiving a total of $122,327.92. (Appellant's App. 8). Niegos did not notify ArcelorMittal before entering into any of the third-party settlements. (Appellant's App. 25).
On December 10, 2009, Board member A. James Sarkisian dismissed Niegos's claim on the basis, among others, that she had failed to notify ArcelorMittal prior toobtaining third-party settlements. (Appellant's App. 10). On June 18, 2010, the full Board adopted Sarkisian's decision. (Appellant's App. 16).
Graycor Indus. v. Metz, 806 N.E.2d 791, 797-98 (Ind. Ct. App. 2004), trans. denied.
she had Failed to Notify ArcelorMittal of Third-Party Settlements
As we have noted, the ODA is part of Indiana's worker's compensation scheme. Roberts v. ACandS, Inc., 806 N.E.2d 1, 3 (Ind. Ct. App. 2004).
Roberts, 806 N.E.2d at 3-4 (footnotes omitted).
Concerns regarding double recovery and the protection of employers' interests are addressed in the ODA at Indiana Code section 22-3-7-36 (2005), which provides in relevant part as follows:
(g) In such actions brought as provided in this section by the employee or the employee's dependents, the employee or the employee's dependents shall, within thirty (30) days after such action is filed, notify the employer or such employer's occupational disease insurance carrier, by personal service or registered or certified mail, of such fact and the name of the court in which suit is brought, filing proof thereof in such action.
ArcelorMittal contends, inter alia, that the Board properly dismissed Niegos's ODA claim because she failed to notify it (as required by section 22-3-7-36(g)) of or obtain its consent for any of the third-party settlements she has entered into. While notification is required, no provision of section 22-3-7-36 specifically provides that dismissal of the ODA action is the appropriate remedy for failing to do so. The Indiana Supreme Court, however, while interpreting Indiana Code section 22-3-2-13 of the WCA (which is essentially identical to section 22-3-7-36 of the ODA) held that "an employer's worker's compensation liability terminates when the injured employee settles with a third-party tortfeasor without first obtaining the employer's consent." Smith v. Champion Trucking Co., 925 N.E.2d 362, 365 (Ind. 2010) ( ). Niegos provides us with no reason, and we can think of none, to depart from this rule in the similar ODA context.
As previously mentioned, the ODA and WCA are both part of the same overall worker's compensation scheme, and the language and import of the provisions at issue here and those at issue in Smith are, for all intents and purposes, identical. Moreover, it isclear to us that the same policy considerations that informed the Smith decision apply with equal force here. As the Smith Court observed:
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