Saturday, June 17, 2006
Injured workers subject to the Nebraska Worker Compensation Act who win damage suits against third party tortfeasors may not require that the the settlement or judgment "make them whole" before the subrogated worker compensation carrier recovers any of its compensation paymentsTurco v. Schuning, S-05-068, 271 Neb. 770June 16, 2006. Plaintiff severely injured in automobile accident while doing his sales job settled an automobile liability claim for $250K; worker comp had paid $145K for disability and medical care. The Plaintiff also had a claim for $100K against his wife's underinsured motorist insurance, which must not have been part of this case. The District Court in a 48-118.04 (2005 revision) hearing determined the Plaintiff's damages to exceed $600K. Assuming that the equitable "made whole" rule applied, the District Court did not allow the worker comp insurer any subrogation. Nebraska Supreme Court reverses holding that the statute's command for a fair and equitable distribution meant just that without incorporating any "made whole rule." Section 48-118(.04) does not prescribe an exact formula for the trial court to apply when making a fair and equitable distribution, and we will not read such formula into the statute. It is not within the province of this court to read a meaning into a statute that is not there. See Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004). Instead, under the plain language of Â§ 48-118(.04), the trial court shall make a fair and equitable distribution. The distribution is left to the court's discretion. We determine that the court erred when it concluded that it was required to apply the "made whole" doctrine.
Posted by stan_sipple at 8:32 PM