Judges differ in ruling application in set-off case

Indiana Court of Appeals judges couldn't agree on the application of a previous case involving the set-off of workers' compensation payments, leading to a split court and three separate opinions in an insurance company's attempt to recoup a portion of workers' compensation benefits following a jury trial.

In Travelers Indemnity Company of America v. Jerry Jarrells, No. 29A02-0807-CV-669, Travelers claimed it was entitled to a statutory lien and/or reimbursement pursuant to Indiana Code Section 22-3-2-13 for the pro rata value of workers' compensation payments it made on behalf of Jerry Jarrells. Jarrells was injured while at work on a construction site and received workers' compensation from Travelers. Jarrells was awarded more than $500,000 in a third-party personal injury action against the general contractor and subcontractor. At trial, the jury was given an instruction that they should consider Jarrells' collateral source payment – nearly $66,000 of workers' compensation payments – when determining his amount of damages.

Travelers appealed the denial of its motion for summary judgment on whether Jarrells should have to pay back the pro rata value of the compensation benefits he received.

Judges Carr Darden, Nancy Vaidik, and Patricia Riley disagreed as to the application of Pendleton v. Aguilar, 827 N.E.2d 614, 621 (Ind. Ct. App. 2005), to the instant case. In Pendleton, the appellate court reversed a trial court's order that granted the defendant tortfeasor a set-off for workers' compensation payment after the jury received evidence of such payments and heard the same jury instruction as in Jarrells' case.

The majority – Judges Darden and Vaidik – found Travelers to be entitled to summary judgment although for different reasons. The appellate court presumed the jury followed the trial court's instructions and applied the law contained within it; thus, Travelers is entitled to a statutory lien and or reimbursement, wrote Judge Darden.

The judges couldn't agree on the application of Pendleton to the outcome of this case. Judge Darden found Pendleton to be distinguishable in that it involves an insurer, which pursuant to its contract of insurance and Indiana's statutory lien, seeking a pro rata reimbursement of the benefits after the worker recovered a judgment for damages against a third-party.

"By its language in Indiana Code section 22-3-2-13, the Indiana Legislature expressed a clear intent to create a statutory lien in and for the benefit of an employer's compensation insurance carrier who has made worker's compensation payments on behalf of an injured worker, where the injured worker has recovered a judgment against a third party who has been found liable for the worker's injuries," he wrote.

Judge Vaidik, in her concurring in result in a separate opinion, agreed Pendleton is distinguishable from Jarrells' case but not for the reasons stated by Judge Darden. She wrote it's because in Pendleton, he was a Florida resident and received workers' compensation benefits from the Florida Workers' Compensation Insurance Guaranty Fund rather than benefits pursuant to Indiana law. There's nothing in that case to indicate he was required to repay the benefits or that the jury was informed he was required to repay them. Judge Vaidik found Pendleton doesn't supersede or excuse the statutory lien obligation, so she concurred in result.

Judge Patricia Riley dissented, writing the majority attempts to distinguish Pendleton on the basis it involves an insurer seeking a pro rata reimbursement, but she believes Pendleton is on point for the situation in the instant case.

"Because the jury was instructed that Jarrells could not recover more than once for any item of loss sustained, it adjusted its damage award downwards, as was done in Pendleton," she wrote. "By enforcing the lien, the majority is in effect imposing a double set-off on Jarrells."

The majority remanded the case with instructions to enter judgment in favor of Travelers and to determine the value of Travelers' lien and pro rata share for purposes of reimbursement.