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

• Court: Court of Appeals of Virginia
• Decided: July 2, 1996
• Docket: 2325951
• Status: Unpublished

Opinion

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.

- 2 - 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

- 3 - 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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