Stolper v. Owens-Corning Fiberglas Corp., OWENS-CORNING

• Court: Wisconsin Court of Appeals
• Writing for the Court: FINE
• Citation: Stolper v. Owens-Corning Fiberglas Corp., 505 N.W.2d 157, 178 Wis.2d 747 (Wis. App. 1993)
• Decision Date: 10 August 1993
• Docket Number: No. 92-2710,OWENS-CORNING,92-2710
• Parties: Judith STOLPER, Personally and as Special Administrator of the Estate d of Kenneth J. Stolper, Plaintiffs-Appellants, v.FIBERGLAS CORPORATION, Owens-Illinois, Inc., Keene Corporation, Fibreboard Corporation, Pittsburgh-Corning Corporation, Armstrong World Industries, Inc., GAF Corporation and Rock Wool Manufacturing Company, Defendants, Employers Insurance of Wausau, A Mutual Company, Defendant-Respondent,FIBERGLAS CORPORATION, Defendant-Third Party Plaintiff, v. COMBUSTION ENGINEERING, INC., Flintkote Corporation and Grant Wilson, Inc., Third Party Defendants.

Page 157

505 N.W.2d 157

178 Wis.2d 747

Judith STOLPER, Personally and as Special Administrator of

the Estate ^d of Kenneth J. Stolper, Plaintiffs-Appellants, v. OWENS-CORNING FIBERGLAS CORPORATION, Owens-Illinois, Inc.,

Keene Corporation, Fibreboard Corporation,

Pittsburgh-Corning Corporation, Armstrong World Industries, Inc., GAF Corporation and Rock Wool Manufacturing Company, Defendants, Employers Insurance of Wausau, A Mutual Company, Defendant-Respondent, OWENS-CORNING FIBERGLAS CORPORATION, Defendant-Third Party Plaintiff, v. COMBUSTION ENGINEERING, INC., Flintkote Corporation and Grant Wilson, Inc., Third Party Defendants.

No. 92-2710.

Court of Appeals of Wisconsin.

Submitted on Briefs July 14, 1993.

Opinion Released Aug. 10, 1993.

Opinion Filed Aug. 10, 1993.

Before WEDEMEYER, P.J., and SULLIVAN and FINE, JJ.

FINE, Judge.

The issue presented by this appeal is whether a worker's compensation carrier is entitled to allocation, under section 102.29(1), Stats., of money recovered in a wrongful-death action brought on behalf of the deceased worker to whom it made worker's compensation payments. We conclude that allocation is mandated by statute.

I.

Kenneth J. Stolper, an insulation worker, died in 1988 as the result of an asbestos- exposure illness. ¹ Employers Insurance of Wausau, the worker's compensation carrier for Stolper's employer, paid Stolper's disability and death benefits, as well as his medical, hospital, and funeral expenses. Prior to his death, Stolper started a third-party action against manufacturers and suppliers of the asbestos that allegedly caused his disease. His wife, Judith Stolper, asserted a claim in that action for loss of consortium. Following Mr. Stolper's death, Mrs. Stolper added a wrongful-death claim pursuant to sections 895.03 and 895.04, Stats. ²

After settlement of the third-party action, the trial court concluded that the settlement proceeds available for distribution from the wrongful death claim were subject to allocation under section 102.29(1), Stats. ³ Our review is de novo. See Kottka v. PPG Industries, Inc., 130 Wis.2d 499, 505, 388 N.W.2d 160, 163 (1986). We affirm.

II.

Section 102.29(1), Stats., provides, as material to this appeal:

The making of a claim for compensation against an employer or compensation insurer for the injury or death of an employe [sic ] shall not affect the right of the employe [sic ], the employe's [sic ] personal representative, or other person entitled to bring action, to make claim or maintain an action in tort against any other party for such injury or death, hereinafter referred to as a 3rd party.... [T]he proceeds of such claim shall be divided as follows: After deducting the reasonable cost of collection, one-third of the remainder shall in any event be paid to the injured employe [sic ] or the employe's [sic ] personal representative or other person entitled to bring action. Out of the balance remaining, the employer, insurance carrier or, if applicable, uninsured employers fund shall be reimbursed for all payments made by it, or which it may be obligated to make in the future, under this chapter.... Any balance remaining shall be paid to the employe [sic ] or the employe's [sic ] personal representative or other person entitled to bring action.... A settlement of any 3rd party claim shall be void unless said settlement and the distribution of the proceeds thereof is approved by the court before whom the action is pending and if no action is pending, then by a court of record or by the department.

The statute unambiguously preserves the right to pursue tort claims against any person or entity who is not either the employee's employer or the employer's compensation insurer. It permits these third-party tort claims to be maintained by "the employe [sic ], the employe's [sic. ] personal representative, or other person entitled to bring action." The issue of whether the available settlement proceeds from Stolper's wrongful death action are subject to allocation under section 102.29(1) turns on whether "3rd party claim" includes an action for wrongful-death authorized by section 895.04(1) & (4), Stats. The trial court, in a well-reasoned oral decision, concluded that it does. We agree.

Although this is a matter of first impression in Wisconsin, the clear language of the statute and prior case law govern our decision. Section 102.29(1), Stats., encompasses wrongful-death actions by permitting third-party claims "for ... the death" of a covered employee. As the trial court correctly noted, wrongful-death actions are purely a matter of legislative grace. See Weiss v. Regent Properties, Ltd., 118 Wis.2d 225, 230, 346 N.W.2d 766, 768 (1984). Thus, the legislature may establish not only who may maintain such an action, ibid., but may also set limits on any ultimate recovery, see Austin v. Ford Motor Co., 86 Wis.2d 628, 646-647, 273 N.W.2d 233, 241 (1979) (Defense counsel's argument to jury that plaintiff should recover an amount that was, unbeknownst to the jury, more than that allowed by the wrongful-death statute did not, and could not, waive statutory limit.). It may also establish a formula by which monies paid on behalf of an injured or deceased employee are to be recovered. See Employers Mut. Liability Ins. Co. v. Mueller, 273 Wis. 616, 620, 79 N.W.2d 246, 249 (1956).

In Mueller, the court decided that a compensation carrier's recovery against a third-party tortfeasor for monies the carrier paid on behalf of the injured employee was not offset by the employee's contributory negligence.

Since the present cause of action [permitting the carrier to recover against the third-party tortfeasor] is created by statute, the answer to the question before us should be looked for in the statute itself. We observe there that the right of action is "for reimbursement for any sum so paid into the state treasury." There is no hint, much less a...