Phyllis Barrett v. City of Brazil

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Phyllis Barrett v. City of Brazil

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.