STRICKLAND V. ROOSEVELT COUNTY RURAL ELEC. COOP., 1984-NMCA-112, 103 N.M. 63, 702 P.2d
1008 (Ct. App. 1984)
RHODA ANN STRICKLAND, A Personal
Representative of the
Estate of JOSEPH KAY STRICKLAND, Deceased,
Plaintiff-Appellant,
vs.
ROOSEVELT COUNTY RURAL ELECTRIC COOPERATIVE and CYRIL E.
CARTER, Defendants, ELIZABETH CUNNAN, Mother and Next
Friend to PATRICK STRICKLAND, Appellee.
COURT OF APPEALS OF NEW MEXICO
1984-NMCA-112, 103 N.M. 63, 702 P.2d 1008
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, Michael Martinez, Judge
Petition for Writ of Certiorari Denied
December 31, 1984; Writ Vacated January 22, 1985; Writ Granted February 28,
1985; Opinion Withdrawn March 7, 1985; Certiorari Quashed July 23, 1985
JANET SANTILLANES, KLECAN &
SANTILLANES, Albuquerque, New Mexico, Attorneys for Plaintiff-Appellant.
TERRY M. WORD, MARY ANN GARCIA-WORD,
Albuquerque, New Mexico, Attorneys for Defendants-Appellees.
Bivins, J., wrote the opinion. WE CONCUR:
THOMAS A. DONNELLY, Chief Judge, PAMELA B. MINZNER, Judge
{1} Plaintiff Rhoda Ann
Strickland, as personal representative, brought this wrongful death action
against a utility and farm owner for damages resulting from death of
plaintiff's husband, Joseph Strickland. For factual background, see
Strickland
v. Roosevelt County Rural Electric Cooperative, 99 N.M. 335,
657 P.2d 1184
(Ct. App.1982). In that case this court affirmed the judgment against the utility
company and the order of the trial court that the worker's compensation carrier
be reimbursed out of the judgment.
{2} Upon remand following
that appeal, the utility company paid the amount of the judgment into court. It
is not a party to this appeal. Reimbursement was then made to the compensation
carrier for the compensation benefits paid to plaintiff, as decedent's widow,
and to Patrick Strickland, decedent's natural child, less the compensation
carrier's proportionate share of attorney fees and costs. No appeal was taken
from that order.
{3} The trial court then
entered an order determining that plaintiff and Patrick were equally entitled
to the proceeds of the wrongful death award, and that "each of
{*64} these distributees shall have deducted
from their respective one-half (1/2) of the judgment that portion of the
reimbursement representing sums paid by the compensation carrier to that
distributee * * *." Plaintiff appeals from this order of distribution.
(Plaintiff also appealed from an order excluding her son, Paul Strickland, from
sharing in the wrongful death proceeds, but later abandoned that claim.)
{4} Plaintiff contends that
after reimbursing the compensation carrier the balance of the judgment should
be distributed equally to herself, as surviving wife, and to Patrick, as
surviving child. On the other hand, while Patrick agrees that the amount of the
wrongful death proceeds should be divided equally between plaintiff and
himself, he disagrees as to the amount to be divided equally. He argues that
the total judgment should have been divided into two equal shares, and each
should be required to reimburse the compensation carrier from an equal share
the amount of benefits that each distributee received from the compensation
carrier. The method adopted makes a significant difference in the net recovery
that each party will receive.
{5} Before illustrating this
difference, we first set out the undisputed facts as to the respective rights
of the parties to participate in the worker's compensation benefits and in the
wrongful death proceeds. As a result of an appeal in
Cunnan v. Blakley and
Sons, Inc., 93 N.M. 217,
598 P.2d 1177 (Ct. App.1979), it was determined
that plaintiff and her son, Paul (decedent's stepson), were entitled to 55% of
the decedent's average weekly wage and Patrick, as the natural son, was
entitled to 5% thereof. Based on these percentages, the trial court in its
order deducted from plaintiff's share the sum of $38,578.69, and from Patrick's
share the sum of $3,809.49. The parties do not dispute that under the Wrongful
Death Act, each is entitled to one-half of the judgment proceeds.
See
NMSA 1978, §
41-2-3 (Repl. Pamp.1982). Nor do the parties dispute the
compensation carrier's right to reimbursement.
{6} Thus, the sole issue on
appeal is whether equal distribution of net proceeds is to be made among those
beneficiaries under the Wrongful Death Act after reimbursing the compensation
carrier from the total wrongful death award, or should each wrongful death
beneficiary reimburse the compensation carrier from his and her equal share of
the total judgment the amount of compensation benefits received by that
beneficiary. This is a matter of first impression in this state.
{7} We answer the question by
holding that each wrongful death beneficiary should reimburse the compensation
carrier from his or her share of the wrongful death award the amount of
benefits received by that beneficiary pursuant to the Workmen's Compensation
Act. NMSA 1978, §§
52-1-1 to -69 (Orig. Pamp. and Cum. Supp.1984). In so
holding, we affirm the trial court.
{8} To graphically illustrate
the difference in the two approaches and using round figures without deductions
for costs or attorney fees, the facts before us would produce these results:
Plaintiff's method:
Total available $120,000
Less reimbursement $ 42,000
-------
$ 78,000
Distribute to each
beneficiary one-half $ 39,000
The court's method:
Total available $120,000
Distribution to each
beneficiary $ 60,000
Plaintiff's net recovery $ 22,000 ($60,000-$38,000)
Patrick's net recovery $ 56,000 ($60,000-$4,000)
{9} Under plaintiff's
approach she and Patrick would each receive net $39,000, whereas as under the
court's method she would receive only $22,000.
{10} While conceding a
disparity in wrongful death benefits would result under her approach, plaintiff
argues that the Workmen's Compensation Act contemplates this disparity by
allowing a widow more benefits than children. While this is true, what
{*65} plaintiff overlooks is that under the
Workmen's Compensation Act, there can be but one recovery. Section 52-1-56(C)
reserves the right of any worker, or in the case of death, those entitled to
receive payment or damages occasioned to the worker, to pursue claims against
third parties, but clearly provides that "he or they, as the case may be,
shall not be allowed to receive payment or recover damages therefor, and also
claim compensation from the employer * * *."
Where a claimant has sought relief from a third party the
amount of the recovery is for the full loss or detriment suffered by the
injured party and makes him financially whole, and thus any subsequent
compensation claim is barred. Castro v. Bass, 74 N.M. 254, 392 P.2d 668
(1964); Seminara v. Frank Seminara Pontiac-Buick, Inc., 95 N.M. 22, 618
P.2d 366 (Ct. App.1980).
{12} We also stated in
Britz
the two-fold purpose of Section 52-1-56(C): "to prevent dual recovery,
Brown
v. Arapahoe Drilling Co., 70 N.M. 99,
370 P.2d 816 (1962), and to provide
reimbursement for employers,
Reed v. Stryon, 69 N.M. 262,
365 P.2d 912
(1961)." 97 N.M. at 597, 642 P.2d at 200.
{13} To adopt plaintiff's
method of distribution would allow her double recovery. This we cannot do.
Brown
v. Arapahoe Drilling Co. Plaintiff argues that "[w]hat Judge
Martinez's Order did was allow the son to make up through the wrongful death
judgment for the inequality of benefits mandated by the Compensation Act, at
the expense of the widow." This is incorrect. What the order did was allow
each wrongful death beneficiary to receive his or her statutory amount, subject
to reimbursing the compensation carrier for benefits received under the
Workmen's Compensation Act. This makes each beneficiary whole and avoids double
recovery by either.
{14} Relying on language in
the original judgment, affirmed in
Strickland, that required
reimbursement to the compensation carrier out of the entire judgment, plaintiff
also argues that this became the "law of the case" so that the trial
court had no authority to order reimbursement out of the parties' respective
shares. The trial court did order reimbursement out of the entire judgment.
This did not, however, preclude apportionment between the recipients of the award.
The trial court had authority to do what it did.
{15} Plaintiff relies on
cases from other jurisdictions to support her contentions. We have reviewed
those cases and find that none actually addresses the question presented in
this appeal or applies to a statutory provision similar to those adopted by
this state.
{16} We affirm the trial
court's order making distribution. Appellate costs shall be borne by plaintiff.
WE CONCUR: THOMAS A. DONNELLY, Chief Judge, PAMELA B. MINZNER,
Judge