State by Workmen's Compensation Bureau v. Clary, 11124

• Decision Date: 06 June 1986
• Docket Number: No. 11124,11124
• Citation: 389 N.W.2d 347
• Parties: STATE of North Dakota by the WORKMEN'S COMPENSATION BUREAU, Appellee, v. Thomas J. CLARY, Appellant. Civ.
• Court: North Dakota Supreme Court

Page 347

389 N.W.2d 347

STATE of North Dakota by the WORKMEN'S COMPENSATION BUREAU Appellee, v. Thomas J. CLARY, Appellant.

Civ. No. 11124.

Supreme Court of North Dakota.

June 6, 1986.

Clare R. Hochhalter, Asst. Atty. Gen., North Dakota Workmen's Compensation Bureau, Bismarck, for appellee; argued by Clare R. Hochhalter.

Lee Hagen Law Office, Fargo, for appellant; argued by Leland F. Hagen.

ERICKSTAD, Chief Justice.

Thomas Clary appeals from the district court judgment granting the North Dakota Workmen's Compensation Bureau's motion for summary judgment. We affirm.

The facts in this case are simple and not in dispute. Clary sustained work related injuries on September 24, 1982. As a result of these injuries, Clary received benefits in the amount of $30,436.92 from the North Dakota Workmen's Compensation Fund. Clary then brought an action for damages against a third party, Western Steel Erectors. The case proceeded to trial and a jury determined that Clary had sustained damages in the amount of $120,000. The jury apportioned the negligence in the case, finding Western Steel Erectors 60 percent at fault, Twin City Construction Company, Clary's employer, 15 percent at fault, and Clary 25 percent at fault. As a result of this apportioned negligence, the damages recovered by Clary totalled $97,667 ($120,000 less Clary's 25 percent negligence, plus other costs and fees).

A dispute arose between Clary and the Bureau regarding the Bureau's subrogation interest pursuant to Section 65-01-09, N.D.C.C., which provides in pertinent part:

"The fund shall be subrogated to the rights of the injured employee or his dependents to the extent of fifty percent of the damages recovered up to a maximum of the total amount it has paid or would otherwise pay in the future in compensation and benefits for the injured employee. The bureau's subrogation interest may not be reduced by settlement, compromise, or judgment."

The Bureau computed its total subrogation interest of the third-party recovery to be $48,833.50, 50 percent of the total damages recovered by Clary from Western Steel Erectors. ¹ Clary contested this computation, arguing that the 25 percent negligence of Clary should be used to reduce the Bureau's subrogation interest by 25 percent. It should be noted that the Bureau's subrogation interest is based on the damages recovered by Clary which have been reduced from total damages sustained by 25 percent because of the negligence assigned to Clary. Nonetheless, Clary argues that the Bureau's subrogation interest should be reduced an additional 25 percent from Clary's reduced damage recovery. ²

The sole issue presented for review to the district court was whether the Bureau's or Clary's computation of the Bureau's subrogation interest was in accordance with 65-01-09, N.D.C.C. After receiving motions from both parties, the district court entered summary judgment in favor of the Bureau. Clary has appealed this judgment and the issue on appeal is whether or not this judgment is in accordance with 65-01-09.

We have recently had the opportunity to review the Workmen's Compensation Bureau's subrogation rights as provided by 65-01-09. See, Blaskowski v. North Dakota Workmen's Comp., 380 N.W.2d 333 (N.D.1986). In Blaskowski the claimant argued that Section 65-01-09 should be construed to prohibit the Bureau from suspending future benefits when the Bureau has already been reimbursed for past benefits paid. We concluded:

"To construe Section 65-01-09 so as to prevent the Bureau from suspending future benefits would hinder the Bureau's efforts to enforce its subrogation rights and would be contrary to the intent of the Legislature." 380 N.W.2d at 336.

The Bureau has had subrogation rights since the North Dakota Workmen's Compensation Fund was established in 1919. 1919 N.D.Sess.Laws, Ch. 162, Sec. 20. The purpose of the Bureau's subrogation rights is to reimburse the fund, to the extent possible, at the expense of the persons at fault. Blaskowski, 380 N.W.2d at 335. In Blaskowski, we noted the following legislative change concerning the Bureau's subrogation rights:

"In 1965 the Legislature reduced the Bureau's right to subrogation of third-party recoveries from one-hundred percent to fifty percent.... This change apparently was made to induce employees to bring actions against third parties who were at fault.... An obvious result of this change was that the Bureau received less subrogation from third-party recoveries. The Bureau responded to this decreased subrogation by adopting policies that more thoroughly protected the remainder of its subrogation interest." [Citations omitted.] 380 N.W.2d at 335.

Clary's first argument is that "the subrogation statute was impliedly amended by the adoption of the doctrine of comparative negligence set forth in N.D.Cent.Code Sec. 9-10-07." ³ At the outset, we should note that repeals or amendments of statutes by implication are not favored and to overcome the presumption against an implied repeal or implied amendment it must be shown that conflict between the two statutes is irreconcilable. Walsvik v. Brandel, 298 N.W.2d 375, 377 (N.D.1980).

The comparative negligence statute was enacted to eliminate the inequities under the former contributory negligence act which denied a recovery if the plaintiff was contributorily negligent even as little as one percent. Day v. General Motors Corp., 345 N.W.2d 349, 354 (N.D.1984). Bartels v. City of Williston, 276 N.W.2d 113, 120 (N.D.1979). Section 9-10-07 did not abolish the concept of contributory negligence, it only abolished the former result of contributory negligence--that a plaintiff's contributory negligence barred recovery of any damages. Keller v. Vermeer Mfg. Co., 360 N.W.2d 502, 504 (N.D.1984). The bar to recovery was, in essence, shifted from one percent to 50 percent. Day, 345 N.W.2d at 354. Section 9-10-07, further provides that any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person recovering. Keller, 360 N.W.2d at 505.

Clary argues that 9-10-07 and 65-01-09 are in conflict and that 9-10-07 should control since it was enacted after 65-01-09. When two statutes relating to the same subject matter appear to be in conflict, they should be construed to give effect to both statutes if this can be done without doing violence to either. City of Fargo, Cass Cty. v. State, 260 N.W.2d 333, 338 (N.D.1977). If an irreconcilable conflict exists, the latest enactment will control or will be regarded as an exception to or as a qualification of the prior statute. City of Fargo, 260 N.W.2d at 338. On the other hand, where the terms of a statute are positive and unambiguous, exceptions not made by the Legislative Assembly cannot be read into the law. Walsvik v. Brandel, 298 N.W.2d at 377.

Clary would have us analyze our decisions which have discussed the effects that 9-10-07 has had on North Dakota negligence law and apply these decisions to 65-01-09, or use these decisions to provide "a sense of direction" in our interpretation of 65-01-09. See, Hoerr v. Northfield Foundry and Mach. Co., 376 N.W.2d 323 (N.D.1985); Day v. General Motors Corp., 345 N.W.2d 349; Layman v. Braunschweigische Maschinenbauanstalt, 343 N.W.2d 334 (N.D.1983); Ness v. St. Aloisius Hospital, 313 N.W.2d 781 (N.D.1981); Bartels v. City of Williston, 276 N.W.2d 113. We do not believe these decisions should influence our interpretation of 65-01-09, however, because we do not believe that a conflict exists between 9-10-07 and 65-01-09.

The Workmen's Compensation Act emphasizes that it is independent of, and a substitute for, other forms of relief for injury and death to an employee. Section 65-01-01, N.D.C.C. provides that when the Workmen's Compensation Act is applicable,

"all civil actions and civil claims for relief for such personal injuries and all jurisdiction of the courts of the state over such causes are abolished except as is otherwise provided in this title."

Section 65-01-08 provides in pertinent part:

"Where a local or out-of-state employer has secured the payment of compensation to his employees by contributing premiums to the fund, the employee ... [shall] have no claim for relief against such contributing employer ... for damages for personal injuries, but shall look solely to the fund for compensation."

In addition, Section 65-04-28, N.D.C.C., provides:

"Employers who comply with the provisions of this chapter shall not be liable to respond in damages at common law or by statute for injury to or death of any employee, wherever occurring, during the period covered by the premiums paid into the fund." [Emphasis added.]

Also, Section 65-05-06 states:

"The payment of compensation or other benefits by the bureau to an injured employee, or to his dependents in case death has ensued, are in lieu of any and all claims for relief whatsoever against the employer of the injured or deceased employee. " [Emphasis added.]

See also, Gernand v. Ost Services, Inc., 298 N.W.2d 500, 505 (N.D.1980).

We said in Layman v. Braunschweigische Maschinenbauanstalt, 343 N.W.2d at 344, "that the exclusive remedy provisions of our workmen's compensation statutes operate to foreclose an employer's liability for contribution to a third-party tort-feasor." While Layman concerned contribution to a third-party tort-feasor, which is not an issue in the case at hand, it does support the same general rule, as do the statutes above, that the Workmen's Compensation Act is a distinct body of law separate from common law and other statutory tort-law provisions. See, Section 65-04-28, N.D.C.C. We also note that we find nothing, and Clary has directed us to nothing, in the legislative history, or elsewhere, that would suggest that the legislature intended 9-10-07 to have amended 65-01-09. We believe that had the legislature intended the Workmen's Compensation Act to be amended when it adopted comparative negligence it would have done so...