F&S Electric, etc. v. Bernard L. O'Hara ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
F & S ELECTRIC MOTOR & TRANSFORMER COMPANY
and
LUMBERMENS MUTUAL CASUALTY COMPANY
MEMORANDUM OPINION *
v. Record No. 2325-95-1 BY JUDGE JOSEPH E. BAKER
JULY 2, 1996
BERNARD L. O'HARA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William W. Nexsen; Timothy P. Murphy;
Stackhouse, Smith & Nexsen, on brief), for
appellants. Appellants submitting on brief.
No brief or argument for appellee.
F & S Electric Motor & Transformer Company and its insurer
Lumbermens Mutual Casualty Company (jointly referred to herein as
employer) appeal the decision of the Workers' Compensation
Commission (commission) holding that it was not entitled to an
offset under Code § 65.2-313 from Bernard L. O'Hara's (claimant)
settlement of a third-party action. Finding no error, we affirm
the commission.
Claimant suffered a compensable injury on July 5, 1987. The
claim was accepted as compensable and benefits were paid pursuant
to an award entered by the commission on April 27, 1988.
Claimant entered into a settlement with a third-party
tort-feasor and received a gross recovery of $175,000. Pursuant
to an agreement by the parties, one-third of that amount
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
($58,333.33) was paid to claimant's attorney for the third-party
claim, one-third ($58,333.34) was paid to claimant, and one-third
($58,333.33) was paid to employer, whereupon employer received
and signed a release. The release, executed in Virginia before a
notary by a representative of employer, read, in part, as
follows:
1. Release
[Employer] agrees to Release and give up
any and all claims and rights which
[employer] may have against [claimant];
Bonnie O'Hara; Shipping Corporation of India,
Ltd.; Norton-Lily International, Inc.; Sea
Containers of America, Inc.; and Sea
Containers Ltd., their underwriters and
insurers. This release acknowledges that
[employer] waives the remainder of its lien
of approximately $138,253.94 to this date.
2. Payment
[Employer] agrees that they have been
paid a total of $58,333.33 in full payment
for making this Release. [Employer] agrees
that they will not seek anything further
including any other payment from any of the
above named individuals arising out of the
lawsuit and the claim by the O'Hara's [sic]
against the defendant's named in the Civil
Action.
On March 14, 1995, employer filed an application with the
commission requesting suspension of benefits pending exhaustion
of the third-party settlement.
The deputy commissioner held that under Code § 65.2-313
employer was only required to pay 23% of each submitted
entitlement until the accrued, post-recovery entitlement equaled
claimant's net recovery.
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The commission reversed the deputy commissioner's decision,
holding that through the release employer "waive[d] and
abandon[ed] any additional subrogation rights it might otherwise
have had" and concluded that employer was "estopped by the
[settlement] agreement . . . to exercise the subrogation rights
it . . . waived and abandoned."
Employer argues on appeal that the release it executed did
not waive or abandon any additional subrogation rights it was
entitled to, and, therefore, under Code § 65.2-313, employer is
entitled to an offset.
Virginia follows the "plain meaning rule" when construing
written instruments. Capital Commercial Properties, Inc. v. Vina
Enterprises, Inc., 250 Va. 290, 294, 462 S.E.2d 74, 77 (1995).
"'[W]here an agreement is complete on its face, is plain and
unambiguous in its terms, the court is not at liberty to search
for its meaning beyond the instrument itself . . . .'" Id.
(quoting Berry v. Klinger, 225 Va. 201, 208, 300 S.E.2d 792, 796
(1983)).
The release employer executed is unambiguous on its face.
It states that employer, for the payment of $58,333.33, "give[s]
up any and all claims and rights" it may have against the named
persons. (Emphasis added.) In addition, the release discloses
that employer agreed that it would "not seek anything further
including any other payment from any of the above named
individuals arising out of the [third-party] lawsuit." (Emphasis
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added.) Given the unambiguous terms of the release, the
commission did not err in its interpretation of the release.
Accordingly, the decision of the commission is affirmed.
Affirmed.
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