Batt v. Special Indemnity Fund

WATT, Justice,

dissenting.

For the reasons set out in this opinion, I dissent. We have not previously addressed the issue of whether an attorney fee award against the Special Indemnity Fund, ordered to be paid in installments, survives the death of the claimant. In examining this question I will discuss several of our earlier decisions and the applicable statutes.

In 1987, we decided Chamberlain v. American Airlines, 740 P.2d 717 (Okla.1987). We held that 85 O.S.1981 § 30 required payment in a lump sum of attorney fees awarded in permanent total disability cases.1 The Fund was not a party to Chamberlain, and after it was decided consistently took the position before the Workers’ Compensation Court and this Court, that the Chamberlain decision did not apply to the Fund. The Fund argued that § 30 did not apply to it because the Fund’s liability for attorney fees was governed by 85 O.S.1981 § 172.D, Id., note 1.

In Taylor v. Special Indemnity Fund, 804 P.2d 431 (Okla.1990), we considered the applicability of §§ 30 and 172 to the Fund’s obligation to pay attorney fees. The Fund appealed a permanent disability award because the Workers’ Compensation Court had *1249ordered the attorney fee paid in a lump sum.2 Here, the majority has held that § 172 divests an attorney of his right to the unpaid installments of his fee upon the death of the claimant. I believe that this result is based on a faulty analysis of the law.

In Taylor, we observed that § 172 was “conspicuously silent on attorney fees and the method of their payment,” and held that § 30 applied to all attorney fee awards, whether awarded against an employer or the Fund. Id., 804 P.2d at 432. We unequivocally held that § 172 does not apply to attorney fees.

Following Chamberlain and Taylor, the legislature passed an amendment to § 30, which became effective September 1, 1992. The relevant part of the amendment states:

Claims for legal fees for permanent total disability awards shall be paid periodical-ly_ The right to any such attorney fee shall be vested at the time the award therefor becomes final. [Emphasis added.]

The majority holds that the 1992 amendment to § 30 was a legislative response to Taylor. According to the majority, by amending § 30 the legislature recognized the Fund’s special status and was protecting the Fund from lump sum awards. This being so, says the majority, the Fund is not bound by the legislative mandate that installment attorney fees vest when the order awarding them becomes final.

The majority’s holding does not bear analysis. The amendment to § 30 negated our holdings in Chamberlain and Taylor requiring fees in permanent total disability cases to be paid in a lump sum. Nevertheless, § 30 applies to both employers and the Fund. Despite our holding in Taylor that § 172 does not apply to attorney fees, the legislature amended § 172 in 1992 without mentioning attorney fees. The reason is clear: The legislature intends for § 30 to govern all attorney fees, no matter who pays them. Thus, § 30 applies equally to employers and the Fund, and both benefit from the legislative amendment. The legislature made clear that § 172 has nothing to do with the Fund’s liability for attorney fees by amending it without mentioning such fees.

Before the 1992 amendments, whether an attorney’s right to payments on an installment fee against the Fund lapsed upon the death of the claimant was ambiguous under § 30 and § 172. The 1992 amendments to §§ 30 and 172 resolved the ambiguity. The amendment to § 30 vests an attorney’s right to his fee when the award granting it becomes final. Although it amended § 172, the legislature did not exempt the Fund from § 30’s mandate that installment fee awards are vested when the awards granting them become final.

The majority holds that the 1992 amendments changed the law. Thus, says the majority, Faman may not rely on the amendments because they were not effective when Batt died. The majority’s holding has ignored the rule that where a statutory amendment resolves an ambiguity,

... it may be presumed that the amendment was made to more clearly express the legislative intention previously indefinitely expressed.

County Board of Equalization, Pittsburg County v. Muskogee Industrial Finance Corporation, 357 P.2d 224, 228 (Okla.1960). The majority opinion does not explain why the Pittsburg County case should not apply here. The 1992 amendments to §§ 30 and 172 present an appropriate case for the application of the Pittsburg County rule. In response to our opinions in Chamberlain and Taylor, the legislature stated its intention that attorney fees in permanent total disability cases shall be paid in installments. The legislature also directed that such attorney fee awards are vested when the order awarding them becomes final. The legislature clearly enacted this second provision as an explanatory measure, not one designed to change the law.

*1250The legislature said nothing in its 1992 amendments to either § 30 or § 172 to support the majority’s holding that the Fund has a special right to have installment attorney fees lapse upon the death of the claimant. Instead, the legislature expressly protected all installment fees from such a result, including those awarded against the Fund. An attorney’s right to an installment fee vests when the award granting it becomes final, whether the Fund or an employer is involved.

By its strained construction of these ambiguous statutes the majority has reached a result that is not only contrary to the legislative intent expressed in the 1992 legislative amendments to §§ 30 and 172, but is unfair as well. I cannot accede to the majority’s holding that Farnan is not worthy of his hire simply because the Fund is involved. I would remand this matter and order the Workers’ Compensation Court to enter an order directing the Fund to pay the balance of Farnan’s fee under the award of December 5, 1988.

. This case was consolidated on appeal with two others. All involved the issue of the Workers' Compensation Court’s power to commute an at-tomey fee against the Fund in permanent total disability'case to a lump sum.