Roberts v. ACandS, Inc.

• Decision Date: 06 April 2004
• Docket Number: No. 93A02-0309-EX-783.,93A02-0309-EX-783.
• Citation: 806 N.E.2d 1
• Parties: William ROBERTS, Jr., Appellant, v. ACandS, INC., Appellee.
• Court: Indiana Appellate Court

806 N.E.2d 1

William ROBERTS, Jr., Appellant, v. ACandS, INC., Appellee.

No. 93A02-0309-EX-783.

Court of Appeals of Indiana.

April 6, 2004.

Linda George, W. Russell Sipes, Laudig George Rutherford & Sipes, Indianapolis, IN, Attorneys for Appellant.

Sharon Funcheon Murphy, Lewis & Wagner, Indianapolis, IN, Attorney for Appellee.

OPINION

SULLIVAN, Judge.

William Roberts, Jr. appeals from an order of the Full Worker's Compensation Board of Indiana ("the Board") dismissing his claim against his former employer, ACandS, Inc., for worker's compensation benefits. Roberts presents two issues for our review: whether the Board's dismissal of Roberts's worker's compensation claim pursuant to Ind.Code § 22-3-7-36(b) (Burns Code Ed. Repl.1997) was premature, and in the alternative, whether I.C. § 22-3-7-36 is unconstitutional as applied. Because we conclude that the dismissal of Roberts's claim was premature, we do not address his constitutional arguments.

We reverse and remand.

Roberts was a union insulator from 1957 through his retirement in 1994. During his over twenty-five years of employment with ACandS, Roberts worked on a multitude of jobs installing, handling, removing, or otherwise working directly with asbestos-containing insulation products. As a result, Roberts developed terminal malignant peritoneal mesothelioma, a disease most often associated with exposure to asbestos. Roberts was diagnosed with the disease in July 2001.

On August 1, 2001, Roberts and his wife, Beverly, filed a civil suit for damages in Marion County Superior Court against a number of defendants whom they alleged contributed to Roberts's disease. On November 10, 2001, Roberts filed with the Board an Application for Adjustment of Claim ("Application") against ACandS. There is nothing in the record, however, which indicates that Roberts ever sought or received worker's compensation benefits pursuant to his Application. Roberts did, however, pursue his third party action.

Prior to a jury trial upon his complaint, Roberts accepted payment pursuant to several settlement agreements which he had reached with one or more defendants whom he had named in the civil action. The total amount of these settlements exceeded $3,800,000. On May 24, 2002, a jury returned a verdict assessing damages for Roberts in the amount of $2,800,000 and damages for Beverly in the amount of $1,000,000. When the verdict was returned, four defendants and numerous nonparties, including ACandS, remained in the action. The jury apportioned 12% fault against Roberts, 13% fault against PSI Energy, Inc.,¹ 36% fault against ACandS, and a total of 39% fault against various other nonparties. The trial court entered a judgment upon the verdict.² However, there is nothing in the record which indicates that the judgment has been paid and accepted or even tendered.

On August 1, 2002, ACandS filed a motion to dismiss Roberts's worker's compensation Application. On March 6, 2003, a single hearing member of the Board issued an order dismissing Roberts's Application. Finding that the facts were not in dispute, the single hearing member concluded that, because Roberts had settled with one or more third parties, pursuant to I.C. § 22-3-7-36, ACandS had no further liability to compensate Roberts for his occupational disease. Roberts sought review of the single hearing member's decision by the full Board, and a hearing was subsequently held on June 24, 2003. On July 28, 2003, the full Board adopted and affirmed the single hearing member's decision dismissing Roberts's Application. Roberts now appeals.

The present case involves interpretation of a statute found within the Occupational Diseases Act ("ODA"), an act which is part of the worker's compensation scheme. More than twenty years after introduction of the Worker's Compensation Act ("WCA"), our General Assembly enacted the ODA, Ind.Code 22-3-7, in order to protect employees by providing compensation, without regard to fault, for those who contracted occupational diseases which were generally not covered under the WCA. Spaulding v. Int'l Bakers Servs., Inc., 550 N.E.2d 307, 309 (Ind. 1990); Duvall v. ICI Americas, Inc., 621 N.E.2d 1122, 1126-27 (Ind.Ct.App.1993). By authorizing compensation for certain diseases not caused by an employer's negligence, the ODA created new rights and remedies previously unrecognized by our common law. Baker v. Westinghouse Elec. Corp., 637 N.E.2d 1271, 1275 (Ind. 1994). As with interpretation of provisions of the WCA, the provisions of the ODA should be liberally construed in favor of the employee to effectuate its humane purpose. Id. Further, where, as here, the facts are not in dispute and the matter for our review is primarily a legal question, we do not grant the same degree of deference to the Board's decision as we would if the issue were of fact, because law is the province of the judiciary and our constitutional system empowers the courts to draw legal conclusions. See Walker v. Muscatatuck State Dev. Ctr., 694 N.E.2d 258, 266 (Ind. 1998)

.

The ODA provides the exclusive remedy for an employee against his employer when the employee develops an occupational disease.³ See Ind.Code § 22-3-7-6 (Burns Code Ed. Repl.1997). It has been observed, however, that in enacting the WCA, the legislature "never intended to abridge the remedies an employee has in tort against a third party." Ross v. Schubert, 180 Ind.App. 402, 407, 388 N.E.2d 623, 627 (1979). The same holds true for the ODA. Indeed, the ODA provides:

"Whenever disablement or death from an occupational disease arising out of and in the course of the employment for which compensation is payable under this chapter, 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 ... may commence legal proceedings against such other person to recover damages notwithstanding such employer's or such employer's occupational disease insurance carrier's payment of, or liability to pay, compensation under this chapter." I.C. § 22-3-7-36(a) (emphasis supplied).

While the ODA permits employees to seek worker's compensation benefits as well as seek recovery from third parties, it also contains provisions to further the general policy prohibiting an employee from obtaining a "double recovery" for his injury. Cf. Waldridge v. Futurex Industries, Inc., 714 N.E.2d 783, 786 (Ind.Ct.App.1999)

(discussing the policy based upon nearly identical language under the WCA), trans. denied. Under the ODA, this policy is fostered in part by the subrogation provision found in I.C. § 22-3-7-36(a) and in the limitation on an employer's liability which is found in I.C. § 22-3-7-36(b).⁴

Upon appeal, Roberts maintains that the Board improperly interpreted I.C. § 22-3-7-36(b) and thus, he claims that dismissal of his Application was premature.⁵ That statute provides:

"In the event such employee,[⁶] ... not having received compensation or medical, surgical, hospital, or nurse's services and supplies or death benefits, ... shall procure a judgment against such other party for disablement or death from an occupational disease arising out of and in the course of the employment, which judgment is paid, or if settlement is made with such other person, either with or without suit, then the employer or such employer's occupational disease insurance carrier shall have no liability for payment of compensation or for payment of medical, surgical, hospital, or nurse's services and supplies or death benefits whatsoever...." I.C. § 22-3-7-36(b) (emphasis supplied).

Specifically, Roberts contends that I.C. § 22-3-7-36(b) does not operate to bar his claim against ACandS until his third-party action is fully concluded by settlement or judgment which is procured and paid. While Roberts has admitted that he has accepted settlements from one or more of the defendants named in his third party action, he asserts in his appellant's brief that his third party action is not fully concluded because the judgment in his favor has not yet been paid.

Roberts asserts that although the statute speaks in terms of the singular when it provides that in circumstances where the employee shall procure a judgment "against such other party" or if settlement is made "with such other person," such phrases must be read inclusive of the plural. In construing statutes, "[w]ords importing the singular number only may be also applied to the plural of persons and things" unless such construction is plainly repugnant to the intent of the legislature or the context of the statute. Ind.Code § 1-1-4-1 (Burns Code Ed. Repl.2002). Reading such phrases to encompass multiple alleged tortfeasors who may have a legal liability to pay damages is consistent with the reality that in many cases there are multiple parties who may have contributed to an occupational disease and may therefore be liable to an injured employee for damages. Thus, under Roberts's interpretation of I.C. § 22-3-7-36(b), where there are multiple alleged tortfeasors, an injured employee would not be barred from seeking compensation benefits from his employer for an occupational disease unless he procures a judgment, which is paid, or settles with each of the alleged tortfeasors thereby fully concluding the third party action.

ACandS disagrees with such an interpretation of I.C. § 22-3-7-36(b) and directs our attention to Waldridge v. Futurex Industries, Inc., 714 N.E.2d 783 (Ind. Ct.App.1999), trans. denied. In Waldridge, another panel of this court interpreted an essentially identical provision under the WCA, i.e. I.C. § 22-3-2-13.⁷ In that case, Waldridge suffered injuries from her exposure to various chemicals while she was employed at Futurex from 1986-1988. In 1990, Waldridge filed with the worker's compensation board an application for adjustment of claim against Futurex, in addition to filing a third party action...