Ruediger v. Kallmeyer Brothers Service

SEILER, Justice

(dissenting).

As the majority opinion states, the formula which it adopts is vulnerable to the charge that it is unequitable to the employee, because it relieves the employer and insurer of having to pay any attorney fees or other expenses on the advance payment on the employee’s future compensation. The advance payment in this case is $84,334.00. The employer and insurer need pay no future compensation until this amount is exhausted. At $42.50 per week for 300 weeks and $27.50 per week thereafter it will take approximately 2900 weeks or 56 years for this to occur. Practically speaking, the employer’s and insurer’s liability is already at an end. Were it not for the employee’s action in recovering over $140,000 from the third party, this $84,334.00 would have to have been paid the employee in weekly installments of compensation by the employer and insurer. Yet they are getting a free ride — a windfall.1 They need pay nothing for being relieved of paying $84,334.00 they otherwise would have to pay in compensation payments. The entire attorney fee of 33 ⅛% on the $84,334.00 is being paid by the employee.

It does not seem to me this is what the statute provides or that such was the intention of the legislature. The first sentence of Sec. 287.150, subd. 3 provides: “Whenever recovery against the third person is *61effected by the employee or his dependents, the employer shall pay from his share of the recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee.” This seems to be a clear direction by the legislature that the employer is not to get a free ride on any part of his share.

In the second sentence of Sec. 287.150, subd. 3 the ratio is established as being that which “. . . the amount due the employer bears to the total amount recovered . . . ” (emphasis supplied). The language used is in the present tense and seems to me to include what the employer is able to utilize by way of advance payment on compensation. The weekly compensation rate in this case is $42.50. Each week therefore the employer is able to utilize $42.50 of the advance payment of $84,334.00 to avoid making a payment that week of $42.50 to the employee. The right to have the advance payment thus utilized is part of the amount due the employer, and so the word “bears” in the above sentence operates each time the employer draws on the advance payment in lieu of having to make the weekly compensation payment himself. The words “amount due” and “bears” are not restricted to past amounts expended by the employer at the time the third party recovery is collected and must necessarily include what is used up week by week of the advance payment in order to satisfy the legislative mandate that the employer shall pay from his share of the recovery a proportionate share of the expense of the recovery.

The compensation referee solved this problem by ordering the employer to continue proportionate payment for reimbursement of expenses incurred in the third party recovery to satisfy the employer’s obligation under the statute to share the expenses of the third party recovery. His order was that the employer continue proportionate payments in the amount of one third of $42.50 until the expiration of 300 weeks and thereafter one third of $27.50 for so long as the employee lives, these payments being in satisfaction of the employer’s and insurer’s obligation to share in the expense of the third party recovery. This is equitable, provides a means whereby the employer and insurer pay their share as they receive their benefit, and accords with the statutory requirement that the employer and insurer are to pay a proportionate share of the expenses of recovery.

In my opinion, our remand should be modified to include a direction of weekly payments in the amount and for the purpose as specified by the referee, terminating at the death of the employee, and I, therefore, rspectfully dissent.

. It is true the employer and insurer could have instituted a third party recovery action if the employee had not done so, but an action in their name might not have been as successful as one filed by the employee personally. Juries are likely to do more for an injured plaintiff than they are for a subrogated insurer.