Van Den Heuval v. Wallace

WIEAND, Judge:

The issue in this appeal concerns the right of a workmen’s compensation insurance carrier, who paid benefits in accordance with the Workmen’s Compensation Law of Delaware, to intervene in an employee’s third party tort action in Pennsylvania. The trial court held that the carrier had no right of subrogation, even though such a right was expressly granted by Delaware law, and denied the carrier’s petition to intervene. For the reasons hereinafter set forth, we reverse.

Jacob Van Den Heuval, a resident of Maryland, was employed by Breeding & Day, Inc., a Delaware corporation having offices in Wilmington, Delaware. On October 26, 1984, while driving his employer’s vehicle in the course of his employment, Van Den Heuval was involved in a collision with a vehicle being operated by Theodore H. Wallace in Chester County, Pennsylvania. Because of serious and disabling injuries sustained in the accident, Van Den Heuval was paid workmen’s compensation benefits by his employ*245er’s workmen’s compensation insurance carrier, Rockwood Insurance Company (Rockwood) in accordance with the Workmen’s Compensation Law of Delaware.1

Van Den Heuval subsequently commenced a tort action against the driver of the other vehicle in Chester County, Pennsylvania. Rockwood filed a petition to intervene in this action for the purpose of protecting the right of subrogation which was guaranteed by statute in Delaware. The trial court denied the petition. It held that, pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1720, there was no right of subrogation for workmen’s compensation benefits paid as a result of injuries sustained in a vehicular accident. This appeal followed.

Although an order denying a petition to intervene is generally deemed interlocutory, where the practical effect of such an order is the denial of relief to which an intervenor is entitled and which he can obtain in no other way, the order is appealable. See: Maginley v. Robert J. Elliott, Inc., 345 Pa.Super. 582, 498 A.2d 977 (1985); Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa.Super. 279, 446 A.2d 614 (1982).

This is such a case. For reasons which we will discuss, Rockwood is entitled to be subrogated in Van Den Heuval’s third party action to the extent of workmen’s compensation benefits which it paid to the employee of its insured. It is unrealistic to suggest that Rockwood’s interest can be protected by a subsequent action against Van Den Heuval. If the third party action is settled without notice to Rockwood, its subrogation claim is at the mercy of the employee who, having received payment, can dispose of the settlement proceeds as he chooses. The order of the trial court which denied intervention, therefore, has the practical effect of denying relief to Rockwood, which cannot fully protect its subrogation interest in any other way. We *246conclude, therefore, that the order denying intervention in this case is an appealable order.

Rockwood's right of subrogation is guaranteed by Delaware statute. The laws of the State of Delaware are controlling because Delaware is the state which has the most significant contacts with the workmen’s compensation aspects of this matter. See: Myers v. Commercial Union Assurance Co., 319 Pa.Super. 21, 465 A.2d 1032 (1983), allocatur denied. See also: Griffith v. United Airlines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). Compare: Nationwide Insurance Co. of Delaware v. Enderle, 369 Pa.Super. 44, 534 A.2d 1071 (1987). Van Den Heuval, as we have observed, was a resident of Maryland and was employed by a corporation doing business in Delaware. He was injured while temporarily present in Pennsylvania, where he was operating a vehicle owned by his employer in the course of his employment. A policy of workmen’s compensation insurance had been issued by Rockwood to Van Den Heuval’s Delaware employer, and Rockwood paid compensation benefits in accordance with the Workmen’s Compensation Law of the State of Delaware.2 It seems readily apparent, therefore, that it is Delaware and not Pennsylvania which has the more significant contacts with the workmen’s compensation aspects of this matter. Van Den Heuval, a resident of Maryland, was present in Pennsylvania only temporarily, and his third party action was brought in Pennsylvania in order to obtain jurisdiction over Wallace, the other driver, who was a resident of Pennsylvania.3 The workmen’s compensation rights and obligations of Rock-wood, however, must be determined according to the laws of the State of Delaware. See: Myers v. Commercial Union Assurance Co., supra. See also: Goodemote v. Mushroom Transportation Co., 427 F.2d 285 (3rd Cir. *2471970); Colombo v. Republic Steel Corp., 448 F.Supp. 833 (W.D.Pa.1978).

Pursuant to 19 Del.Code Ann. § 2868(e), any recovery received by the plaintiff-employee against the third party, after deducting the expenses of recovery, must first be used to reimburse the workmen’s compensation carrier for amounts paid or payable under the Delaware Workmen’s Compensation Law. The balance of the third party recovery is to be paid to the employee and must be treated as an advance payment by the insurance carrier on account of any future payment of compensation benefits. See: Delaware v. Donahue, 472 A.2d 824, 826 (Del.Super.1988). Roekwood’s right of subrogation, therefore, is unequivocal. When the trial court held that Roekwood had no such interest, it erred.

Pa.R.C.P. 2827 provides that intervention “shall be permitted” if “(8) [the party petitioning to intervene] could have joined as an original party ... or (4) the determination of [the] action may affect any legally enforceable interest of [the person seeking to intervene] whether or not he may be bound by a judgment in the action.” Under this rule, an insurance carrier who has paid workmen’s compensation benefits may intervene in an employee’s third party action in order to protect and preserve the carrier’s right of subrogation. See: Scalise v. F.M. Venzie Co., 301 Pa. 315, 320, 152 A. 90, 92 (1930). See also: Maginley v. Robert J. Elliott, Inc., supra 345 Pa.Super. at 588-595, 498 A.2d at 980-984 (Concurring and Dissenting Opinion by Wieand, J.). When the trial court refused in the instant case to allow intervention by the carrier to protect its subrogation rights, the court committed an abuse of discretion.

Reversed and remanded with instructions to allow the requested intervention. Jurisdiction is not retained.

McEWEN, J., files a dissenting opinion.

. According to the averments of the petition to intervene, Rockwood paid medical expenses in the amount of $30,100.00 and wage losses in the amount of $31,000.00 and was continuing to make payments on account of lost wages.

. The workmen’s compensation claim was settled by an agreement which specifically required that compensation be paid "in accordance with the Workmen’s Compensation Law of the State of Delaware.”

. Wallace was a volunteer fireman who was responding to an emergency call.