PUBLISHED
OPINION
Case No.: 95-2942
†††Petition for
Review Granted
Complete Title
of Case:
Threshermens Mutual Insurance Company,
Plaintiff-Appellant,
Dorothy Gross,
Involuntary-Plaintiff-
Respondent,
v.
Robert Page, National Building Service and
CNA Insurance Companies,
Defendants-Respondents.†††
Submitted on Briefs: March
4, 1997
Oral Argument: ---
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: April
15, 1997
Opinion Filed: April 15, 1997
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: WILLIAM D. GARDNER
so indicate)
JUDGES: WEDEMEYER,
P.J., FINE and SCHUDSON, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the
plaintiff-appellant the cause was submitted on the briefs of James C. Ratzel
and Randall R. Guse of Otjen, Van Ert, Stangle, Lieb & Weir, S.C.
of Milwaukee.
Respondent
ATTORNEYSFor the
defendants-respondents the cause was submitted on the briefs of David M.
Victor of Law Offices of Mark H. Miller of Brookfield.
|
COURT OF APPEALS DECISION DATED AND RELEASED April 15, 1997 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2942
STATE
OF WISCONSIN IN COURT OF
APPEALS
Threshermens Mutual
Insurance Company,
Plaintiff-Appellant,
Dorothy Gross,
Involuntary-Plaintiff-
Respondent,
v.
Robert Page, National
Building Service and
CNA Insurance
Companies,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Milwaukee County:
WILLIAM D. GARDNER, Judge. Reversed
and cause remanded with directions.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
WEDEMEYER, P.J. Threshermens Mutual Insurance Company
appeals from a nonfinal pretrial order which prohibited it from presenting
certain claims in its action against a tortfeasor to recover for worker's
compensation payments it made to the injured employee.[1] Threshermens claims the trial court erred
when it ordered that Threshermens could only present evidence regarding
payments it had already made to Dorothy Gross, the injured employee.[2] Threshermens asserts that it should be
entitled to present claims for:
(1) pain and suffering Gross incurred; and (2) future medical
payments Gross may incur. Because the
statutory language of the Worker's Compensation Act permits Threshermens to
assert such claims, we reverse the order of the trial court and instruct the
court to allow Threshermens to present these claims.
I. BACKGROUND
Gross, an employee of
Puccio's Pastabilities Galore, was injured when she fell in Puccio's parking
lot. Threshermens is Puccio's worker's
compensation carrier. Threshermens made
payments to Gross to compensate her for the injuries she sustained in the fall.
Threshermens filed this
action, pursuant to § 102.29(1), Stats.,
against Robert Page, National Building Service (the parties responsible for
maintaining the parking lot) and CNA Insurance Companies (hereinafter
collectively “Page”) to recover payments it made to Gross or will be obligated
to make in the future.[3] Threshermens alleged that Gross was injured
on premises owned and/or maintained by Page and Gross's injuries were caused by
Page's negligence.
Gross was notified of
the lawsuit, but declined to actively participate in it. She did not file an independent action on
her own, but was joined as an involuntary plaintiff in Threshermens'
action.
During the course of the
litigation, a dispute arose regarding the issues that would be presented. Threshermens intended to present evidence of
Gross's pain and suffering as well as future medical expenses. Page intended to limit the action to only
those payments Threshermens had previously made to Gross. The trial court entered an order precluding
Threshermens from presenting the pain and suffering claim and the future
medical expenses claim. The trial court
ordered that Threshermens' recovery in this matter would be limited to payments
Threshermens had actually made to Gross.
Threshermens filed a
petition for leave to appeal from the trial court's order, which we granted.
II. DISCUSSION
The issues in this case
are whether § 102.29(1), Stats.,
entitles a worker's compensation carrier to present evidence regarding an
injured worker's claims of pain and suffering and claims for future medical
expenses. The trial court determined
that it did not, ruling that a worker's compensation carrier's recovery against
a tortfeasor is limited to those payments it has already made to the injured
employee.
The interpretation and
application of statutory language is a question of law that we review
independently. Campion v.
Montgomery Elevator Co., 172 Wis.2d 405, 410, 493 N.W.2d 244, 246 (Ct.
App. 1992). Chapter 102, Stats., sets forth the applicable rules
and procedures regarding Wisconsin's Worker's Compensation Act. Id. The section of the Worker's Compensation Act pertinent to this
case involves the law governing third-party liability. See § 102.29(1), Stats.
This section allows an injured employee to assert a claim in tort
against a negligent third party. Campion,
172 Wis.2d at 410, 493 N.W.2d at 246.
“It also provides that any employer or insurer who has paid the
compensation has a direct cause of action against the third party.” Id. This statute provides in pertinent part:
The
employer or compensation insurer who shall have paid or is obligated to pay a
lawful claim under this chapter shall have the same right [as the employee] to
make claim or maintain an action in tort against any other party for such
injury or death.... However, [the
employer or compensation insurer, or the employee making a claim] shall give to
the other reasonable notice and opportunity to join in the making of such claim
or the instituting of an action and to be represented by counsel.... If notice is given as provided in this
subsection, the liability of the tort-feasor shall be determined as to all
parties having a right to make claim.
Section
102.29(1).
In interpreting the
meaning of the statute, we must give effect to the intent of the
legislature. Berna-Mork v. Jones,
174 Wis.2d 645, 650, 498 N.W.2d 221, 223 (1993).
In
ascertaining that intent, the first resort is to the language of the statute
itself. If it clearly and unambiguously
sets forth the legislative intent, it is the duty of the court to apply that
intent to the case at hand and not look beyond the language of the statute to
ascertain its meaning.
Id. at
650-51, 498 N.W.2d at 223 (citations omitted).
“The language of § 102.29(1), Stats.,
is clear and unambiguous.” Id.
at 651, 498 N.W.2d at 223. The language
clearly grants the insurer the same right as the injured employee to make a
claim or maintain an action in tort. Id.
In order for an
insurance carrier to recover damages pursuant to § 102.29(1), Stats., the law requires that three
elements be present: (1) the
action must be grounded in tort; (2) the action must be one for the
employee's injury or death; and (3) the injury or death must be one for
which the employer or its insurer has or may have liability. Johnson v. ABC Ins. Co., 193
Wis.2d 35, 45, 532 N.W.2d 130, 133 (1995). Based on the record before us, Threshermens has satisfied each
element. This action is a tort action
as it is grounded in alleged negligent maintenance of the parking lot, which
resulted in Gross's injuries.
Threshermens is seeking to recover payments for Gross's injuries that it
has made or will be obligated to make in the future. Pain and suffering damages fall within the category of claims to
which § 102.29(1) applies. See
Kottka v. PPG Indus., Inc., 130 Wis.2d 499, 511-15, 388 N.W.2d
160, 166-67 (1986) (pain and suffering damages are subject to allocation under
§ 102.29(1)).
Page claims that
Threshermens is not entitled to assert the pain and suffering claim: (1)
because it is not obligated to pay pain and suffering as worker's compensation;
and (2) because Gross did not file her own independent action and, therefore,
the statute of limitations regarding the pain and suffering claim has
elapsed. We are not persuaded by either
argument. Section 102.29(1), Stats., clearly allows either the
injured employee or the insurer to commence an action against the third-party
tortfeasor and grants each the “same rights” to make a claim or maintain an
action. Furthermore, § 102.29(1)
specifically provides that as long as proper notice is given, “the liability of
the tortfeasor shall be determined as to all parties having a right to make a
claim, and irrespective of whether or not all parties join in prosecuting such
claim.” It is undisputed that
Threshermens complied with the notice provisions. This language, therefore, offers additional support for our
conclusion that Threshermens is entitled to present a claim for pain and
suffering to the jury even though Gross is not actively participating in the
claim.
We also reject Page's
claim that the statute of limitations bars the pain and suffering claim. Section 102.29(1), Stats., allows Threshermens to assert the claim. Threshermens filed a timely complaint. Therefore, the statute of limitations is
inapplicable to this case.
Page next argues that
Threshermens cannot assert a claim for future medical expenses. Page's ground for objecting to a future
medical claim is that an award of this sort is too speculative. We disagree. Section 102.29(1), Stats.,
allows Threshermens to assert the same claims available to the employee and
allows it to recover for compensation paid or compensation it “is obligated to
pay.” As a result of Gross's injuries,
she may incur additional medical expenses in the future, which Threshermens may
be liable to pay.
Although we acknowledge there is some
inexactitude in awarding damages for future medical expenses, the damages will
not be awarded in the absence of proof.
Just as in any tort case, Threshermens will have to introduce competent
evidence to demonstrate that Gross will incur future medical expenses. Threshermens will have to bring forth expert
witnesses to show the amount of the future medical expenses. The jury will then be assigned the task of
determining the validity of this claim.
Denying Threshermens the opportunity to present this claim violates the
statute.
Based on our analysis of
the statute, we conclude that the language clearly allows Threshermens to
present a claim for pain and suffering and future medical expenses.[4] We reverse the trial court's order and
remand the case for further proceedings consistent with this opinion.
By the Court.—Order
reversed and cause remanded with directions.
[2] The record is unclear as to whether the trial court actually ruled on the future medical expenses claim. Nevertheless, both parties argued the issue and we therefore assume that the trial court prohibited Threshermens from presenting this claim. Accordingly, we address this argument.