Mason v. Scarpuzza

383 N.W.2d 158, 147 Mich. App. 180

• Court: Michigan Court of Appeals
• Decided: November 18, 1985
• Docket: Docket 74718
• Status: Published

Opinions

M. R. Stempien, J.

Travelers Insurance Company appeals as of right from the trial court’s denial of its motion to intervene in Mary Lou Mason’s third-party tort action under MCL 418.827; MSA 17.237(827). We reverse.

On August 17, 1979, Mary Lou Mason (plaintiff) was injured in an automobile accident during the course of her employment with American Airlines. She was a passenger in an automobile owned by Martell Realty Corporation and Ann Arbor Inn Management Corporation and operated by James R. Scarpuzza. On November 9, 1981, plaintiff commenced a tort action against Scarpuzza, Martell, and Ann Arbor Inn alleging that the vehicle was being operated in a reckless and negligent manner and that, as a result, plaintiff "sustained and incurred hospital and medical expenses and will continue to incur same and she has incurred a great deal [of] pain and suffering and will continue to incur pain and suffering in the future and that her injuries are permanent in nature; [and that] * * * she sustained serious impairment of bodily function”.

Plaintiff received no-fault benefits for three years following the accident. On August 17, 1982, Travelers, as the workers’ compensation insurance carrier for American Airlines, began to pay plaintiff $175 a week in workers’ compensation benefits. Through mid-April of 1984, Travelers paid $23,335 in weekly compensation benefits and $6,-456 in medical costs. On May 17, 1982, Travelers filed a notice of lien against any settlement or judgment plaintiff might secure in her lawsuit against Scarpuzza, Martell, and Ann Arbor Inn.

On July 8, 1983, Travelers filed a motion to intervene in the lawsuit pursuant to § 827(1) of the Worker’s Disability Compensation Act (wdca), MCL 418.827(1); MSA 17.237(827X1). The trial court ruled from the bench that it would grant Travelers’s intervention request provided that the parties could agree on a cost-sharing plan. Evidently no cost-sharing agreement was entered into because on August 26, 1983, the trial court issued an order denying Travelers’s request to intervene. On October 13, 1983, the trial court denied Travelers’s request for a rehearing on its intervention motion and this appeal followed.

The sole issue on appeal is whether Travelers had an unconditional right to intervene in plaintiff’s action against Scarpuzza, Martell, and Ann Arbor Inn under § 827 of the wdca.¹_

Travelers argues that its statutory right to intervene in this lawsuit is unrestricted and not subject to the trial court’s discretion. It maintains that the wdca provides that the apportionment of costs occurs after recovery and, therefore, that the trial court’s condition was contrary to the wdca.

As of the date of this appeal, plaintiff has not recovered a settlement or judgment in her cause against Scarpuzza, Martell, and Ann Arbor Inn.

The basis of the trial court’s decision not to allow intervention was that it believed that plaintiff was entitled to recover her costs expended thus far in the case and, if no agreement to that effect could be reached, Travelers would not be permitted to intervene in the action.

GCR 1963, 209.1 provides in relevant part as follows:

"Intervention of Right. Anyone shall be permitted to intervene in an action

"(1) when a statute of this state or a court rule confers an unconditional right to intervene * *

Section 827(1) provides that "[a]ny party in interest shall have a right to join in the action”. Because the statute grants a carrier who has paid compensation a substantive right to recover against a third-party tortfeasor, there is no question but that the insurance carrier is a real party in interest. See, e.g., Muskegon Hardware & Supply Co v Green, 343 Mich 340, 346; 72 NW2d 52 (1955); Detroit v Spivey, 68 Mich App 295, 299-300; 242 NW2d 561 (1976). Therefore, Travelers had the statutory right to intervene in plaintiff’s action against Scarpuzza, Martell, and Ann Arbor Inn.

Neither the court rule nor the wdca provides for a conditional right to intervene as proposed by plaintiff. The apportionment of expenses is not made by the court until after there has been a recover. MCL 418.827(6); MSA 17.237(827X6); Glavin v Baker Material Handling Corp, 132 Mich App 318, 324-326; 347 NW2d 222 (1984), remanded on other grounds 422 Mich 882 (1985). Therefore, the trial court incorrectly conditioned the grant of Travelers’s intervention request upon an apportionment of plaintiffs prerecovery expenses.

Plaintiffs reliance upon Harrison v Ford Motor Co, 370 Mich 683; 122 NW2d 680 (1963), is misplaced. Unlike the situation here, Harrison involved an insurance carrier which represented both sides to the controversy. The Court held that under those circumstances, because "[o]ne may not sue himself’, the insurance carrier could not intervene but, rather, had to await reimbursement from the plaintiffs recovery in the action. Harrison, supra, p 687.

For the reasons stated, we hold that Travelers had the right to intervene in the present action.²

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

M. J. Kelly, P. J., concurred.

1 There has been no claim on appeal that the workers’ compensation insurance carrier would not be entitled to share in the plaintiffs recovery because of the application of the no-fault act to the present controversy. In Great American Ins Co v Queen, 410 Mich 73; 300 NW2d 895 (1980), the Supreme Court discussed the interplay between the Worker’s Disability Compensation Act and the no-fault act with respect to the issue of reimbursement for benefits paid. Given the present posture of the case, it is unknown whether the workers’ compensation carrier will in fact be seeking reimbursement for payments which substitute for no-fault benefits "otherwise payable”. Thus, there would be no reason to deny Travelers’s request to intervene in this action on this ground. In fact, Queen permits a workers’ compensation carrier to receive reimbursement from third-party tort recoveries in the same manner as the payment of workers’ compensation benefits for non-motor vehicle related injuries when the workers’ compensation benefits do not substitute for no-fault benefits otherwise payable. 410 Mich 73, 97. In this case, plaintiff is suing for pain and suffering damages based upon her alleged serious impairment of bodily function. These are not the kind of damages "otherwise payable” under the no-fault act. See MCL 500.3135(1); MSA 24.13135(1). Therefore, the pleadings indicate that Travelers is not seeking reimbursement for payments which substituted for no-fault benefits otherwise payable. See and compare Bialochowski v Cross Concrete Pumping Co, Inc, 141 Mich App 315; 367 NW2d 381 (1985).

2 GCR 1963, 209.1 did not make provision for inquiring into the timeliness of an intervention request. On remand, subject to MCR 1.102, the lower court may determine whether, under MCR 2.209(A)(1), Travelers’s aplication to intervene was timely filed.