Andreson v. Brink Electric Construction Co.

1997 SD 104, 568 N.W.2d 290, 1997 S.D. LEXIS 104

• Court: South Dakota Supreme Court
• Decided: August 13, 1997
• Docket: None
• Status: Published

Opinions

KONENKAMP, Justice.

[¶ 1.] Troy Andreson, a lineman for Brink Electric, was injured on the job when a Black Hills Power & Light Company (BHPL) truck hit him. He received workers’ compensation benefits, but also won a $35,000 judgment in his tort action against BHPL. Rather than accepting the judgment amount, can he choose to seek continued workers’ compensation? The Department of Labor held in the negative, and we affirm, finding Andreson effectively “collected” under SDCL 62-4-38 in obtaining a judgment against the tortfea-sor, barring further workers’ compensation recovery.

Facts

[¶2.] On March 11, 1993, Andreson was injured on duty when a BHPL employee, driving a company vehicle, crushed his legs between the bumpers of two trucks. On petition to the Department of Labor, he received approximately $36,000 in workers’ compensation benefits, which included his medical expenses, $7,000 in temporary total disability benefits, and about $13,000 for permanent partial disability. His tort action against BHPL sought recompense for pain and suffering, $14,582.31 in medical bills, and economic losses his expert testified exceeded $500,000. We affirmed the jury’s $35,000 award on appeal. Andreson v. Black Hills Power & Light Co., 1997 SD 12, 559 N.W.2d 886 (Andreson I).

[¶ 3.] Dissatisfied with the verdict, Andre-son continued with his administrative proceeding against Brink, started in March of 1995, seeking workers’ compensation benefits for retraining and additional permanent partial disability. Brink’s summary judgment motion rested on the following statute:

Whenever an injury for which compensation is payable under this title shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may at his option either claim compensation or proceed at law against such other person to recover damages or proceed against both the employer and such other person, but he shall not collect from both.

SDCL 62-4-38 (1993). The ALJ determined Andreson was barred from seeking further workers’ compensation benefits. Additionally, as the injury occurred in 1993, the old SDCL 62-4-38, quoted above, was found to apply, not the amended 1994 version. On review, the circuit court affirmed, holding the statute in effect at the time of his injury prevented Andreson’s further pursuit of workers’ compensation benefits. Andreson appeals, questioning whether such a result is mandated under SDCL 62-4-38.

Standard of Review

[¶4.] We review administrative appeals under SDCL 1-26-36:

The court shall give great weight to the findings made and inferences drawn by an agency on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in light of the entire evidence in record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion....

See Iversen v. Wall Bd. of Educ., 522 N.W.2d 188, 191 (S.D.1994). Further, SDCL 1-26-37 provides that questions of law presented to an administrative agency are reviewed under a de novo standard. Tischler v. United Parcel Service, 1996 SD 98, ¶ 23, 552 N.W.2d 597, 602 (quoting Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992)); In re Beaver Lake, 466 N.W.2d 163, 166 (S.D.1991). Statutory construction and issues of retroactive application are questions of law. US West Comm. v. Public Utilities Comm’n., 505 N.W.2d 115, 122 (S.D.1993); Hieb v. Opp, 458 N.W.2d 797, 800 (S.D.1990); Appeal of Schramm, 414 N.W.2d 31, 33 (S.D.1987).

Analysis and Decision

[¶ 5.] Double recoveries are barred under SDCL 62-4-38, but Andreson insists “collect,” as used in this statute, means to “actually receive money from” both a tortfea-sor and a workers’ compensation employer.¹ Even though he has an enforceable legal judgment against BHPL, Andreson believes he has not yet “collected,” and offers the following: “To collect a debt or claim is to obtain payment or liquidation of it, either by personal solicitation or legal proceedings.” Black’s Law Dictionary 263 (6th ed 1990). This definition supports Brink’s argument, however, and our determination that a judgment from a legal proceeding is indeed liquidation of a claim, therefore falling within the definition of “collect.” See id. at 931 (“Liquidation” is “[t]he act or process of settling or making clear, fixed, and determinate that which before was uncertain .or unascer-tained.”); see also In re Hastie, 2 F.3d 1042, 1045 (10th Cir.1993)(“collect” is payment or liquidation of a debt); Durland v. Durland, 62 Neb. 813, 87 N.W. 1048, 1049 (1901)(“collect” means recovery).

[¶ 6.] While a claimant may “proceed against both the employer and such other [third party tortfeasor],” this phrase must be read with “but he shall not collect from both.” SDCL 62-4-38 (emphasis added). Ellis v. City of Yankton, 526 N.W.2d 124, 126 (S.D.1995)(we construe related words in a statute together and derive its intent from reading it as a whole); Kelley v. Duling Enters., Inc., 84 S.D. 427, 433, 172 N.W.2d 727, 730 (1969)(“In construing a particular word or term in a statute reference will be had to the meaning of the words with which it is associated.”). See infra note 2. Andre-son acknowledges BHPL’s readiness to pay, but notes in his brief that although BHPL “has expressed a willingness and ability to pay the judgment, one must interpret the statute from a hypothetical claimant’s perspective. Thus, one can easily imagine a situation wherein a third party tortfeasor declares bankruptcy-” We will leave that quandary for the day it becomes an actuality. Nothing in the record discloses BHPL’s inability or disinclination to pay the judgment which was affirmed in Andreson I. Keegan v. First Bank, 470 N.W.2d 621, 624 (S.D.1991); Gottschalk v. Hegg, 89 S.D. 89, 95, 228 N.W.2d 640, 643-44 (1975)(“[J]udicial machinery should be conserved for problems which are real and present or imminent, not squandered on problems which are abstract or hypothetical or remote.”) (citation omitted).

[¶ 7.] We have suggested in the past that SDCL 62-4-38 is indicative of “South Dakota’s public policy of avoiding duplicate recovery for the same injury.” National Farmers Union Property & Cas. Co. v. Bang, 516 N.W.2d 313, 321 (S.D.1994); St. Paul Fire & Marine Ins. v. Farner, 648 F.2d 489, 491 (8th Cir.1981)(noting South Dakota’s policy of avoiding duplicate recovery in a workers’ compensation action). By amending SDCL 62-4-38 in 1994, our Legislature may have sought to soften the rigid aftereffect workers suffer when obtaining inadequate recoveries against tortfeasors. See 6 Larson, Larson’s Workmen’s Compensation § 73.00, at 14-354 (1997)(movement toward abolishing these types of rules). Yet we cannot bypass the former statute applicable to Andreson’s claim which precludes further workers’ compensation benefits after taking judgment against a third party.² See generally Benson v. Sioux Falls Med. & Surgical Clinic, 62 S.D, 324, 252 N.W. 864 (1934); Stratton v. Sioux Falls Traction Sys., 49 S.D. 113, 206 N.W. 466 (1925). He effectively “collected” when he obtained an enforceable judgment against BHPL for civil damages. If the jury verdict was not enough in his view, we nonetheless cannot reinterpret the statute to allow a prohibited double recovery. As we noted in Andreson I, the jury evaluated not only An-dreson’s half-million dollar claim for damages, but also his credibility, and determined $35,000 was appropriate. 1997 SD 12, 559 N.W.2d 886. This decision was supported by the evidence, Id. at ¶ 14, 559 N.W.2d at 889-90, and, because a general verdict form was used, we will never know if the jury meant for its verdict to cover only part of his loss.³ Though he is dissatisfied with the jury’s damage award, he may not collect from both his employer and the tortfeasor.

[¶ 8.] We affirm the Department’s decision in all respects.

[¶ 9.] MILLER, C.J., and AMUNDSON and GILBERTSON, JJ., concur. [¶ 10.] SABERS, J., dissents.

1 . SDCL 62-4-38 was amended in 1994, and An-dreson alleges the new version applies:

If an injury for which compensation is payable under this title has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at the employee’s option, either claim compensation or proceed at law against such other person to recover damages or proceed against both the employer and such other person. However, in the event the injured employee recovers any like damages from such other person, the recovered damages shall be an offset against any workers’ compensation which the employee would otherwise have been entitled to receive.

SDCL 62-4-38 (1996 Supp). Nothing in the statute suggests the Legislature intended to make this version retroactive. Schultz v. Jibben, 513 N.W.2d 923, 925 (S.D.1994); see Westergren v. Baptist Hosp. of Winner, 1996 SD 69, ¶ 18, 549 N.W.2d 390, 395 (statute in effect on date of claimant’s injury controls workers’ compensation claim). Neither do we find persuasive Andre-son’s argument that the new version only affects remedies or procedures, therefore necessitating retroactive effect. The construction Andreson would have us put on the new version would expose Brink to further workers' compensation liability. This would affect its substantive rights, which bars a subsequent statutory amendment from having a retroactive effect. State v. Galligo, 1996 SD 83, ¶ 6, 551 N.W.2d 303, 304.

Also without merit is Andreson's argument that the new version of SDCL 62-4-38 merely cures an ambiguity in the pre-1994 rendition. While we agree broad construction of workers’ compensation statutes is generally appropriate, we hold fast to the standards on legislative intent. Did the amendment cure some ailment in the former version, or was it intended to be applied retroactively? In this instance, "[njowhere in the legislative enactment is there any statement that this act is retroactive or that it is intended to be curative or explanatory of prior legislation.” Schmaltz v. Nissen, 431 N.W.2d 657, 663 (S.D. 1988); see also Karlen v. Janklow, 339 N.W.2d 322, 323 (S.D.1983)("Although there are no principles of construction which prevent using subsequent enactments or amendments as an aid in arriving at the direct meaning of a statute, the legislative adoption of a subsequent amendment is not binding on the court. It is not a controlling retroactive interpretation.”).

2 . Andreson argues this result is out of harmony with the statutory scheme, i.e., reading SDCL 62-4-38, -39, and -40 together. In re Appeal of AT & T Info. Sys., 405 N.W.2d 24, 27 (S.D.1987). Read together, however, these three statutes allow an employee to proceed against both an employer and a tortfeasor, but to collect from only one. If an employee collects from a third party, the employer can recover from the employee amounts it has previously paid in compensation to the employee. Alternatively, SDCL 62-4-40 permits an employer to recover directly from a tortfeasor, should the employee elect to pursue only workers’ compensation. Andreson’s strategy, on the other hand, is inharmonious with these statutes, as the judgment against BHPL effectively forecloses Brink from ever collecting more than $35,000 from the tortfeasor, although Andreson seeks workers' compensation benefits in excess of that amount.

3 . But see cases construing SDCL 62-4-38 and its predecessors that do not address the situation presented here: a claimant who receives workers' compensation benefits, sues a third party tortfeasor, becomes dissatisfied when awarded less than he believes he deserves, and returns to workers’ compensation for a remedy. In Benson v. Sioux Falls Med. & Surgical Clinic, 62 S.D. 324, 252 N.W. 864 (1934), an employee alleged medical negligence in determining injury, causing further harm compensable by workers’ compensation, but he had previously executed a set-tiement and release with his employer for such benefits. After acknowledging the employee can sue a third party tortfeasor, subject to an employer’s subrogation rights, the court reversed a directed verdict for the medical provider, holding it was not an agent of the employer and therefore not protected from suit by the releases. 62 S.D. at 334-35, 252 N.W. at 869. Similarly, the facts and procedure in National Farmers Union v. Bang, 516 N.W.2d 313 (S.D.1994), are meaningfully different. That case held:

an employee may recover [underinsured motorist coverage (UIM) ] from his employer if his injury was caused by a third-party tortfeasor, ... that UIM policy provisions purporting to set off worker’s compensation are invalid and that an entity that is self-insured for worker's compensation has a statutory lien against any self-insured UIM benefits for compensation paid.

516 N.W.2d at 321. This case, like Benson, does not implicate the definition of "collect,” barring the type of redundancy Andreson attempts here.