Beaudrie v. Anchor Packing Co. , 206 Mich. App. 245 ( 1994 )

206 Mich. App. 245 (1994) 520 N.W.2d 716

BEAUDRIE
v.
ANCHOR PACKING COMPANY
WRIGHT
v.
ANCHOR PACKING COMPANY
SMITH
v.
ARMSTRONG WORLD INDUSTRIES, INC

Docket Nos. 152023, 152024, 152025.

Michigan Court of Appeals.

Submitted April 7, 1994, at Detroit. Decided July 18, 1994, at 9:10 A.M.

Zamler, Mellen & Shiffman, P.C. (by Neil A. Kay) and (Daryl Royal, of Counsel), for the plaintiffs.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Morrison Zack, Assistant Attorney General, for the Silicosis, Dust Disease, and Logging Industry Compensation Fund.

Before: CAVANAGH, P.J., and JANSEN and D.C. KOLENDA,^[*] JJ.

PER CURIAM.

Plaintiffs in these three consolidated cases appeal as of right from the portion of the trial court's orders applying the worker's compensation lien of the Silicosis, Dust Disease, and Logging Industry Compensation Fund to all damages recovered in each case. In Docket Nos. 152023 and 152024, the fund cross appeals from the allocation of the tort recovery. We affirm in part and reverse in part.

Decedents, Merel Beaudrie, Ralph Wright, and Willie Smith, died from mesothelioma resulting from exposure to asbestos. The personal representative of each estate brought wrongful death actions against a number of defendants. Pursuant to §§ 531(3) and 827 of the Worker's Disability Compensation Act, MCL 418.531(3); MSA 17.237(531) (3), and MCL 418.827; MSA 17.237(827), the fund filed a notice of lien on any settlement or judgment recovered by plaintiffs. The court granted the fund's motion to intervene to protect the lien. Each case was ultimately settled. The court incorporated each settlement in a consent judgment that indicated the settlement in that case, the manner in which the recovery was to be divided among the interested parties, and the portion of the recovery that was subject to the fund's lien. This appeal and cross appeal followed.

Plaintiffs argue on appeal that the trial court erred in subjecting to the worker's compensation lien (1) damages payable for loss of consortium or loss of society and companionship and (2) damages payable to those interested parties who were not worker's compensation beneficiaries.

Where an employee who has received worker's compensation benefits recovers in a third-party tort action, the employer or the compensation carrier that paid the benefits is entitled to reimbursement from the recovery under § 827(5), which provides:

In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.

Our Supreme Court construed this subsection in Eddington Estate v Eppert Oil Co, 441 Mich. 200; 490 NW2d 872 (1992). The lead opinion, written by Justice BRICKLEY and joined by Justices RILEY and GRIFFIN, would have held that the subsection entitled the worker's compensation carrier to seek reimbursement from the entire amount of the third-party tort recovery obtained as a result of the death of an employee, regardless of the classification of the damages (as either economic or noneconomic) and regardless of whether the recipient of the proceeds was entitled to receive compensation benefits. Id. at 204. Justice MALLETT agreed that the classification of the damages was immaterial, but argued that the status of the claiming party should dictate whether the lien would attach. Id. at 218-219.

Justice MALLETT agreed in part with the result of the lead opinion, but dissented from part IV(C) of that opinion, which would permit the employer to recover from loss of society and companionship damages awarded to the deceased employee's nondependent parents. Id. at 218. Because Justice MALLETT expressly dissented only from part IV(C) of the lead opinion, it is appropriate to read his opinion as concurring in both the reasoning and the result of the remainder of the lead opinion. Accordingly, with the exception of part IV(C), Eddington constitutes binding precedent under the doctrine of stare decisis. See Negri v Slotkin, 397 Mich. 105, 109; 244 NW2d 98 (1976); Breckon v Franklin Fuel Co, 383 Mich. 251, 279; 174 NW2d 836 (1970), overruled on other grounds in Smith v Detroit, 388 Mich. 637, 651; 202 NW2d 300 (1972). Eddington thus stands for the proposition that, where the recipient is a worker's compensation beneficiary, a worker's compensation carrier is entitled to reimbursement from the entire amount of the third-party tort recovery awarded, regardless of the type of damages recovered.^[1]

In the present case, therefore, the trial court did not err in permitting the fund's lien to attach to damages for loss of consortium or loss of society and companionship.^[2]

The fund concedes that, under Eddington, any recovery made by a party who is not eligible for worker's compensation benefits is not subject to the worker's compensation lien. In light of the fund's concession, we decline to consider the merits of this issue, and we reverse the decision of the trial court to the extent that it permitted the lien to attach to the recoveries of the decedents' adult, nondependent children.

On cross appeal, the fund argues that the percentages of the third-party recoveries awarded to the adult, nondependent children in the Beaudrie and Wright cases constitute an effort to circumvent the fund's lien and are unsupported by the record.

By failing both to cross-examine witnesses when it had the opportunity to do so and to object to the allocation of the proceeds among the interested parties, which failure was not merely a procedural defect, the fund has waived this issue. See Tucker v Clare Bros Ltd, 196 Mich. App. 513, 519-520, 519, n 2; 493 NW2d 918 (1992).

Affirmed in part, reversed in part, and remanded for modification of the consent judgments. We do not retain jurisdiction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] To the extent that Judge CAVANAGH may have stated otherwise in Piper v Chrysler Corp, unpublished opinion per curiam of the Court of Appeals, decided April 13, 1994 (Docket No. 145931), p 3, n 1, he is now of the view that Justice MALLETT's partially concurring opinion renders the applicable portion of Eddington binding authority.

[2] In Tucker v Clare Bros Ltd, 196 Mich. App. 513, 520; 493 NW2d 918 (1992), this Court asserted that the right to reimbursement does not extend to a spouse's recovery for loss of consortium. That case is distinguishable from the present case, because the employee in Tucker suffered nonfatal injuries. The distinction is a significant one. Hearns v Ujkaj, 180 Mich. App. 363, 370-371; 446 NW2d 657 (1989).