Court Can Approve Employer's Insurer's Settlement of Workers Compensation Third Party Case over Workers Objection
The plaintiff was injured in an auto accident while in the course and scope of his employment and he received worker’s compensation benefits. He then sued the other driver. The worker’s compensation insurer joined as a subrogated plaintiff pursuant to Wis. Stat. sec. 102.29. Prior to trial the defendant offered to settle the case. When the plaintiff refused, the worker’s compensation insurer moved the court to compel the plaintiff to accept the offer, arguing that under Bergren v. Staples, 263 Wis. 477, 57 N.W.2d 714 (1953), the circuit court had discretion to order the plaintiff to accept the settlement offer. The plaintiff asserted that Bergren involved the converse of the situation here—where a plaintiff wanted to settle but the worker’s compensation insurer refused—and that he should therefore not be compelled to settle the case. The circuit court agreed with the worker’s compensation insurer and compelled the plaintiff to accept the defendant’s settlement offer, and the plaintiff appealed to the court of appeals.
The court of appeals affirmed, holding that in a tort action where an injured worker and his worker’s compensation carrier are plaintiffs, the worker’s compensation insurer may move the circuit court to compel the injured worker plaintiff to accept a defendant’s settlement offer. The court further held that when a worker receives worker’s compensation benefits he waives his right to a jury trial in a tort action against the third party tortfeasor. Therefore, upon a motion by the worker’s compensation insurer, a circuit court can compel the injured worker plaintiff to accept a defendant’s settlement offer.
Dalka v. American Family Mutual Ins. Co., 2011 WI App 90 (2010AP1428) Court of Appeals opinion
