Layman v. Braunschweigische Maschinenbauanstalt, Inc. ( 1983 )

VANDE WALLE, Justice,

concurring specially.

It is apparent to me that the resolution of Layman’s appeal creates inequities regardless of the solution adopted. I much prefer the alternative solution referred to in Justice Sand’s opinion, i.e., the denial of subrogation under Section 65-01-09, N.D. C.C., and the reduction of the judgment pursuant to Section 32-38-04(2), N.D.C.C. That solution was discussed by this court in Sayler v. Holstrom, 239 N.W.2d 276 (N.D.1976), but rejected therein for the reason it is one that should be submitted to the Legislature for its consideration. Although that opinion was issued in 1976 and the Legislature has convened in four regular sessions since that time, there has been no legislative resolution of the problems created by the statutes under consideration in this case.

Perhaps this court should reconsider its decision in Sayler and conclude that in those instances in which an employer’s negligence, with that of a third party, concurrently contributed to the injury of an employee, the Workmen’s Compensation Bureau is not entitled to reimbursement for benefits paid to the employee who has recovered sums for his injuries from the third party. This is apparently what the Idaho Supreme Court concluded in Liberty Mutual Insurance Company v. Adams, 91 Idaho 151, 417 P.2d 417 (1966).

Neither the Bureau nor the employer, Minn-Dak, are parties to this action and it would be unjust to adopt such a resolution without the opportunity for those parties to participate in the case. Because it appears to me that a resolution which does not penalize an employee who is injured through no negligence of his own is a more just resolution than one which would result in reducing the liability of a negligent third party at the expense of an innocent employee, I reluctantly concur in the result reached in the majority opinion. Perhaps the solution reached in the majority opinion will serve as the catalyst for a legislative solution of this problem more rapidly than will the solution proffered in the opinion authored by Justice Sand.

GIERKE, Justice (specially concurring). I agree with the opinion authored by Chief Justice Erickstad. I would, however, like to make some additional observations with regard to the case of Tucker v. Union Oil Co. of California, 100 Idaho 590, 603 P.2d 156 (1979), referred to in both the opinion of the Chief Justice and the opinion of Justice Sand. In Tucker, supra 603 P.2d at 169, the Idaho Supreme Court stated, in pertinent part:

“I.C. § 72-223 provides that an employer may be subrogated to the rights of the employee to the extent that the employee has received compensation benefits. In Liberty Mutual Ins. Co. v. Adams, 91 Idaho 151, 417 P.2d 417 (1966), however, the right of an employer to such subrogation and its ability to obtain reimbursement from the employee was limited. The Court held that when an employer’s negligence, together with the negligence of a third party nonem-ployer tortfeasor, concurrently contributed to the injury of an employee, neither the employer not [síc] his surety may obtain reimbursement for workmen’s compensation benefits from an employee who recovers from a third party tort-feasor.”

The court further stated, id. 603 P.2d at 171:

“We hold that the jury instruction here does not adequately safeguard against a double recovery to the Tuckers.”

It appears clear to me that the reasoning in the Tucker case was founded on the desire of the court to prevent a double recovery on the part of the employee. As stated above, under the facts of the Tucker case the rights of subrogation of the insurer were lost and, accordingly, Tucker was in a position to retain his workmen’s compensation benefits and the full recovery as well. In the instant case, the Workmen’s Compensation Bureau is entitled to recover the benefits paid to Layman pursuant to § 65-01-09, N.D.C.C., regardless of the finding of 75 percent negligence on the part of the employer. To further reduce the award of damages by that amount would result in shifting any inequity from the third party tortfeasor, BMA in this case, to the plaintiff-employee, Layman.

The holding in the Tucker case, supra, serves to prevent the employee from receiving a double payment. I suggest that the opinion of Justice Sand, if followed by this court, would result in just the opposite. It would, in essence, result in the plaintiff-employee having the amount of the workmen’s compensation benefits subtracted from his award twice.

The second solution proposed by Justice Sand would be the denial of the Workmen’s Compensation Bureau’s subrogation rights under § 65-01-09, N.D.C.C., thus requiring an employer, “over a period of time, to pay a premium on the employment classifications equal, or nearly equal, to the benefits paid to the employee”. I agree with Justice Sand that this solution might produce the most equitable result under the facts of this case. Section 65-01-09, N.D.C.C., states in pertinent part “The bureau’s sub-rogation interest may not be reduced by settlement, compromise, or judgment”. In light of this statutory language, I believe that such a denial of subrogation rights must be left to the Legislature.

I recognize that it is Justice Sand’s position that the opinion of Chief Justice Erick-stad, in effect, disregards the provisions of § 32-38-04(2), N.D.C.C. I cannot agree with Justice Sand’s position as I do not equate the giving of a voluntary release, as in the Bartels case, with the statutory provisions of § 65-01-08, N.D.C.C.