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Kilgore v. Collins

Decided: December 11, 1963.

KILGORE
v.
COLLINS, ETC.



Appeal from the Circuit Court for Montgomery County; Anderson, J.

Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ. Hammond, J., delivered the opinion of the Court.

Hammond

The appellant, a tort-feasor, against whom an injured workman and the compensation insurance carrier of his employer recovered a judgment, seeks reversal on the claims that the trial court erred prejudicially (a) in allowing proof of the fact and amount of compensation payments to the injured employee (and the amount of medical expenses paid by the insurer), and (b) in instructing the jury that the insurer was entitled to recover from the verdict the amount it had paid.

The workman was a truck driver who injured his wrist when he jackknifed his employer's truck in an effort to avoid a collision with an automobile operated by the defendant below, the appellant here. The Compensation Commission awarded temporary total and permanent partial disability benefits, which were paid by the insurer, as were medical expenses, in the amount of $4,363.00 in all.

The injured workman sued the automobile driver for damages for loss of wages, pain and suffering, and permanent injuries. The driver moved to dismiss because Code (1957), Art. 101, Sec. 58, provides that for a period of two months from the award by the Compensation Commission the employer or insurer has the prior and exclusive right to bring suit against a third party, and the two months had not expired. Leave of court was given to amend the declaration to include

the insurer as a claimant to the extent of the amounts it had paid, and the amendment was made.

When the case came on for trial, the court was advised preliminarily that inasmuch as the insurer had been made a party, it proposed to prove that the award had been made and complied with, and the amount of the compensation and medical payments under the award, to justify its right to recover the monies it had paid out, under Code (1957), Art. 101, Sec. 58. The automobile driver objected both to the fact of the award and the amounts paid under it being made known to the jury, claiming that the court could apportion any verdict rendered to protect the insurer's rights. After discussion with the court, it was agreed that in his opening statement counsel for the workman (who represented the insurer also) would tell the jury that the insurer had paid out certain monies (without giving the amounts) as compensation to the workman and would claim the right, under the compensation law, to recover them from a verdict for the workman.

This was done. Thereupon, on cross-examination of the plaintiff-workman, counsel for the defendant-driver brought out that after a claim had been filed with the Compensation Commission the workman had received weekly benefits for a year. Then, on redirect examination, the workman's counsel proved the amount that had been paid each week. The automobile driver's counsel also cross-examined other witnesses as to the details of the receipt of compensation, particularly the doctor who treated the workman. Counsel for the claimant then produced a representative of the insurer who testified as to the amounts paid as compensation and for medical treatments and expenses.

The court instructed the jury that the only reason the insurer was in the case was because under the law an injured employee is entitled regardless of fault to workmen's compensation which had been paid by the insurer. He told the jury that for the purpose of its consideration of the case the workman was the sole plaintiff and that "the amount of the award of the Workmen's Compensation Commission has no bearing on this case at all except in one particular, and that is, in the event, under the law and the evidence, that you would find in

favor of the plaintiff and award the plaintiff damages against the defendant, then the insurance company * * * who have had to pay out workmen's compensation * * * would be entitled to recover from your verdict up to the amount of what they had to pay under the order of the Workmen's Compensation Commission." Next, the jury was told that if they found the workman was not entitled to recover the insurer could not recover, and that they were not bound by the award of the Commission "because you are trying this case on the evidence that you have heard in this case, not what the Workmen's Compensation Commission would award * * *. So you can just forget about the insurance company in this particular case as a party plaintiff, because the sole issues in this case lie between the Plaintiff, George F. Collins and the Defendant, Robert O. Kilgore."

Standard instructions on primary and contributory negligence followed at length, in light of the law applicable to the environment and circumstances of the accident.

Before coming to the standard instructions on damages, Judge Anderson repeated what he had previously told the jury "the amount of any award made by the Workmen's Compensation Commission is not the measure of damages in a suit against a wrongdoer, should you find that Mr. Kilgore was a wrongdoer. * * * So far as the insurance company is concerned, they are entitled to recover out of any verdict that you may award, should you award a verdict in this case, but that is not a matter that you have to determine because you are going to bring ...


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