dissenting.
The dispute giving rise to this matter arises from a jury award obtained by Mrs. Hieb in an amount in excess of $1.5 million. However, the source of funds available to satisfy that judgment are the proceeds of the Hartford UIM policy in the amount of $475,000.00.
In the first appeal involving this case, this Court interpreted N.C. Gen. Stat. § 97-10.2 (1991) to allow the workers’ compensation insurer, St. Paul Insurance Company, a “lien against all amounts paid or to be paid to Mrs. Hieb by Hartford pursuant to its UIM coverage.” *40Hieb v. St. Paul Fire & Marine Ins. Co., 112 N.C. App. 502, 507, 435 S.E.2d 826, 828 (1993).
Thus, while this Court affirmed that St. Paul was entitled to a lien, it did not determine the amount of the lien, nor did it consider the equitable implications of N.C.G.S. § 97-10.2(j) which provides in pertinent part:
[I]n the event that a judgment is obtained which is insufficient to compensate the subrogation claim of the Workers’ Compensation Insurance Carrier,... either party may apply to the resident superior court judge of the county in which the cause of action arose, where the injured employee resides or the presiding judge before whom the cause of action is pending, to determine the subrogation amount. After notice to the employer and the insurance carrier, after an opportunity to be heard by all interested parties, and with or without the consent of the employer, the judge shall determine, in his discretion, the amount, if any, of the ■ employer’s lien and the amount of cost of the third-party litigation to be shared between the employee and employer....
(emphasis supplied).
Following our decision in Hieb I, it became painfully obvious to Mrs. Hieb that since this Court had determined that St. Paul was entitled to a lien on all amounts paid or to be paid by Hartford, it only would be a matter of time before the continuing workers’ compensation payments by St. Paul would erase all of the benefits that she had gained by litigating her personal injury action.
Since the prior judgment did not address the issue of the amount of the judgment, she proceeded under N.C.G.S. § 97-10.2(j) to obtain an equitable remedy. In ruling on this matter, Judge Sitton recognized that the lien, if allowed to continue to attach on continuing payments of workers’ compensation, would exceed the judgment. To assume otherwise is speculation. That is why N.C.G.S. § 97-10.2Q) states that the trial court shall, in its discretion, determine the amount of the workers’ compensation lien where the full proceeds from any judgment or settlement are insufficient to satisfy the lien.
The trial court, as a matter of law, had full authority to exercise its discretion and set the amount of the workers’ compensation lien to be repaid and to permit the remaining funds to be disbursed to Mr. *41and Mrs. Hieb. Indeed, it would be an unjust result to hold that a court has no authority to determine the subrogation amount under N.C.G.S. § 97-10.2Q) once it determines that a party is entitled to an undetermined and continuing lien amount on present proceeds.
I, therefore, respectfully dissent.