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Subrogation and Worker's Comp

Commuting is hard, and has special risks for daily workers; especially, it can be argued, on truck drivers.  There are major studies on exactly how many people work in adjacent states, and have to drive across the border to work. Numbers from the U.S. Census Bureau show that around 153,015 individuals work in Mecklenburg County, and commuted from another county in the Charlotte metro area: that’s among the highest number of county-to-county commuters in the whole U.S.  

Insurance companies are aware of the economic beehive of north carolina traffic, and often have special restrictions in their policies. Let’s talk about the facts of what can happen, and the importance of having an experienced trial attorney who is aware of these complications in law and insurance coverage.

Bob Walker, a trucker, lived in South Carolina, but sometimes worked over in North Carolina: at least, that was his employer’s base of operations—K& W Cafeterias, headquartered in Winston-Salem. This distinction was to be crucially important, because worker’s compensation is often based alongside the employer state of operations, and not the employee, residence. This is not a hard and fast rule, and is a good reason to be sure you only work with a well-qualified workers compensation attorney or combined trial/workers comp lawyer. On the 16th of May, Bob was hit in a collision, in South Carolina, that took his life. He left behind not only his wife, but six children as well.

II. Subrogation of Money Awards: Getting Under The Wire

There was very little doubt about important factual aspects of the case. There was no doubt that he been at work, and thus was entitled to some worker’s compensation protection. As negotiations with the other driver continued, they settled that the fault was not Bob’s. The calculation award for worker’s compensation was fairly straightforward, although it was very little consolation to the grieving family. Unfortunately, after the court settlement for the automobile accident, insurance company (Liberty) pursued recovery for an offset (subrogation) for it to decrease its payment under the workers compensation order. This was done under existing North Carolina law that allowed such an offset. And although Bob was a South Carolina resident, and initial court proceedings were attempted in South Carolina federal court, the parties eventually agreed (or were ordered) to proceed in North Carolina. While the insurance company attempted the offset, the deceased man’s representative’s trial attorney pointed out that under South Carolina law, amount of money awarded end especially to children of the estate – did not have an obligation to pay part of the offset.

Insurance companies rely on subrogation. Subrogation is a public policy that essentially pools or caps all payments so that a plaintiff is not being paid repeatedly for the same harm. The first pool of payments to the widow came from the North Carolina industrial commission: 500 weekly payments of over $650, plus funeral expenses. The total benefits awarded were approximately $333,000. The facts we’ve been talking about here show that it takes a well-qualified worker’s compensation attorney to deal with insurance arguments on all borders. It doesn’t always happen that there are competing state rules involved, but it is another example of why you need a highly qualified trial attorney: one who knows many aspects of how cases overlap—even overlap into other states.

III. Conflict: What State To Be In

We can think about the diversity that’s included in this case already. The insurance company is based in North Carolina; the driver who died lived in South Carolina, but worked in North Carolina. His children and widow lived in South Carolina: the accident occurred in South Carolina, and the driver was also a resident of South Carolina. Employer was a corporation based in North Carolina. After the death, the widow was appointed as personal representative of the dead man’s estate, and filed a wrongful death action in Horry County, South Carolina. The North Carolina insurance commission ended up with jurisdiction, as mentioned above, and this really proved to be the most important player in this drama.

In an interesting move, the auto accident attorney in this case asked the Court of Appeals to write a dissenting opinion. This unusual request was based upon what appeared to be the unfairness of having the widow in conflict with the interest of their own children, based on the impartial workings of subrogation in this kind of case. In a dissent, at least there would be some solace in the state legislature considering and addressing this issue. It was, although not successful on its face, a good effort to begin to make right, a legal wrong. The court declined to write a dissenting opinion, and ruled the North Carolina law on subrogation had to apply.

Next, the trial attorney in this case attempted to point out the children were not receiving worker’s compensation. In such a case, it didn’t seem fair that the children’s interest in the wrongful death amount should be reduced because of a worker’s compensation award. In other words, it seems to be apples and oranges in terms of who was involved, and who benefitted: and that North Carolina should be able to reach into South Carolina to claim some control over money awarded there. It was a clever argument and reflected the value of having an experienced workers compensation/trial attorney arguing the case. This was especially critical here, where there were so many moving parts in terms of in and out of state actions and actors. It was not to be successful. It was a clever series of arguments and reflected the value of having an experienced workers compensation/trial attorney arguing the case. This was especially critical here, where there were so many moving parts, in terms of in- and out-of-state actions and actors. It was not to be a successful argument though. There was a case that was fairly close in terms of its facts… but the trial attorney pointed out, there was neither wife nor children, and it was all in North Carolina. The North Carolina Court of Appeals was not moved to make a distinction. In this case, the insurance company won the subrogation order, and any separate claim to benefit the six children was not recognized by the court.

Commuting workers are crucial to the North Carolina economy: at least 65,000 of this state’s workers live in South Carolina (that’s almost 1.5% of all NC workers). Others travel even further, and face more regular risks of the road: another 17,000 workers commute from Virginia. In most North Carolina counties, the majority of their workers also live in the county in which they work. Statewide, 74% of all individuals live and work in the same county. Interestingly, commuting workers in Durham County are actually a majority: 51% of all county workers there actually live in another county.

These numbers show how often more than fuel, but feelings and potential legal damages occur—involving, as we talked about today, workers compensation, auto injuries, different state laws, and the need for a truly qualified workers compensation/ accident attorney. If you, a family member or a loved one have been hurt in a workplace auto accident—or have questions involving related interstate claims or your legal rights or at hearings, please contact us.  You will speak with an auto accident/ workers compensation attorney who can best answer your questions about how your interstate cases may relate to each other.  There is never a fee for this initial consultation.

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