Phyllis Barrett v. City of Brazil

Indiana Court of Appeals

January 19, 2010

Gerald McGlone:  Plaintiff counsel

Edward Liptak/Jeremy Dilts:  Defense counsel

Bailey, Judge.

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.

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Posted on 2/4/2010