Phyllis Barrett v. City of Brazil
Indiana Court of Appeals
January 19, 2010
Gerald McGlone: Plaintiff counsel
Edward Liptak/Jeremy Dilts: Defense counsel
Facts & Procedural History:
Phyllis Barrett’s husband, Jerry, was killed in motor vehicle accident in the course of his employment. The accident was the fault of Tracey Burk, who was driving a car owned by Ronald Wesley. Following the accident, Phyllis received from Geico, $50,000, the policy limit on the car. She also received $50,000 from her underinsured motorists policy. Additionally, Burk pled guilty to a felony and was ordered to pay Phyllis $4,350. Her recovery totaled $104,350.
Phyllis filed a claim for worker’s compensation benefits. The possible worker’s compensation recovery for Jerry’s death was at least an additional $72,000. The Board dismissed Phyllis’ claim, finding that her third party recovery prohibited her claim. Phyllis appealed.
Judgment: Reversed and remanded.
Issue: Whether the Board erred in dismissing Barrett’s claim.
Holding & Rationale:
The Court found that because the court ordered the $4,350 restitution to Phyllis and she had not agreed upon this amount, paragraph three of Ind. Code § 22-3-2-13 (“Section 13”) applied, which allows a claimant to either collect the judgment or repay the employer and pursue the worker’s compensation claim.
Concur: Baker, C.J., and Robb, J.
Posted on 2/4/2010