                          IN THE SUPREME COURT OF MISSISSIPPI

                                       NO. 2004-CA-02450-SCT

FEDERATED MUTUAL INSURANCE COMPANY

v.

KEVIN DARRIN McNEAL

                                 ON MOTION FOR REHEARING

DATE OF JUDGMENT:                               11/04/2004
TRIAL JUDGE:                                    HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED:                      SMITH COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         WILLIAM BIENVILLE SKIPPER
ATTORNEYS FOR APPELLEE:                         ROBERT G. GERMANY
                                                EUGENE COURSEY TULLOS
                                                MARK K. TULLOS
NATURE OF THE CASE:                             CIVIL - OTHER
DISPOSITION:                                    REVERSED AND REMANDED - 11/30/2006
MOTION FOR REHEARING FILED:                     04/13/2006
MANDATE ISSUED:

        EN BANC.

        DICKINSON, JUSTICE, FOR THE COURT:

¶1.     The appellee’s motion for rehearing is denied.      The previous opinion is withdrawn, and

these opinions are substituted therefor.

¶2.     After collecting benefits from his employer’s workers’ compensation insurer, an

injured employee filed suit against an allegedly negligent third party.         When the suit was

settled, the insurer requested reimbursement for workers’ compensation benefits paid to the

employee, but the circuit court, citing the “made whole” doctrine,1 refused to order the


        1
         Under the “made whole” doctrine, a plaintiff must be made whole, that is, recover all damages,
before an insurer is allowed to enforce its contractual right to subrogation.
repayment. Claiming an absolute statutory right to reimbursement, the insurer filed this appeal

without first formally seeking intervention in the case.     The questions presented are whether

the insurer is properly before this Court and, if so, whether the judicially-created “made

whole” doctrine preempts Miss. Code Ann. Section 71-3-71 (Rev. 2000), which grants to a

workers’ compensation insurer a lien against any amount recovered by an employee from a

third party.

                       BACKGROUND FACTS AND PROCEEDINGS

¶3.     Kevin Darrin McNeal was injured while delivering fuel to a customer of his employer,

John Weatherford, Inc., who maintained a workers’ compensation insurance policy with

Federated Mutual Insurance Company (“Federated”).             McNeal applied for and was paid

workers’ compensation benefits.

¶4.     McNeal filed a complaint in the Circuit Court of Smith County, Mississippi, against

Navistar International Truck and Engines Corp. ABA Corporation, and Waters International

Trucks, Inc., alleging these defendants negligently caused the accident that led to his injuries.

A Smith County jury assessed McNeal’s total damages at $2,250,000.00 against Navistar

International Truck and Engines Corporation, ABA Corporation, and Waters International

Trucks, Inc. The jury also found McNeal to be twenty-five percent at fault, and a judgment was

entered in McNeal’s favor for $1,687,500.00.

¶5.     The defendants appealed to this Court, but the parties reached a settlement before the

conclusion of the appeal.    After being informed of the settlement, this Court remanded the

matter to the Smith County Circuit Court.      In its order approving the third-party settlement, the

circuit court noted that McNeal disputed Federated’s entitlement to a workers’ compensation


                                                  2
subrogation lien and directed the parties to deposit the disputed portion of the settlement funds

in an interest bearing account maintained by McNeal’s attorney.

¶6.     Federated, who had never formally sought intervention in the case and was not a party,

filed a Motion to Compel Compliance with Section 71-3-71 requesting the circuit court order

McNeal to reimburse it for all workers’ compensation benefits paid to him.                The circuit court

denied Federated’s motion,2 holding that the “made whole” doctrine announced in Hare v.

State, 733 So. 2d 277 (Miss. 1999), applied to workers’ compensation subrogation liens.                The

circuit court further held that McNeal had not been made whole by the amount he received in

settlement and that, until he was made whole, Federated was not entitled to repayment of its

lien. Upon learning its motion was denied, Federated perfected an appeal to this Court.

                                            DISCUSSION

¶7.     On appeal, Federated raises only the question of “[w]hether the lower Court erred in

holding the equitable ‘made whole’ doctrine applies to statutory workers’ compensation

subrogation liens, despite the clear language of Miss. Code Ann. § 71-3-71.”

        I.      Mississippi Workers’ Compensation Act

¶8.     The Mississippi Workers’ Compensation Act grants to a workers’ compensation insurer

the statutory right to reimbursement of benefits paid an injured worker in the event the worker

recovers from a responsible third party. The pertinent portion of the statute provides:

        [A]ny amount recovered by the injured employee or his dependents (or legal
        representative) from a third party shall be applied as follows: reasonable costs



        2
         In denying this motion, the circuit court relied on an unpublished opinion from the Hinds County
Circuit Court, which cited an Arkansas Supreme Court case, General Accident Insurance Co. of
America v. Jaynes, 33 S.W.3d 161 (Ark. 2000).

                                                    3
        of collection as approved and allowed by the court in which such action is
        pending, or by the commission of this state in case of settlement without suit,
        shall be deducted; the remainder, or so much thereof as is necessary, shall
        be used to dis charge the legal liability of the employer or insurer; and any
        excess shall belong to the injured employee or his dependents.

Miss. Code Ann. § 71-3-71 (Rev. 2000) (emphasis added).

¶9.     Thus, the statute unambiguously provides that, after deducting the costs of collection

and attorneys’ fees, any recovery from a third party (whether by award or through settlement)

must be applied first to repay the workers’ compensation insurer for benefits it paid the

claimant.     This Court, stating the statute must be strictly interpreted according to its mandatory

language, has uniformly and consistently applied the statute and required reimbursement.        See,

e.g., Miss. Power Co. v. Jones, 369 So. 2d 1381, 1387 (Miss. 1979) (“The statute is plain and

unambiguous.”); Litton Sys., Inc. v. Murphree, 301 So. 2d 850, 852- 53 (Miss. 1974) (statute

means “exactly what it says; that is, that the employer and insurer are entitled to recover

compensation paid.”); Merchants Co. v. Hutchinson, 199 So. 2d 813, 815 (Miss. 1967)

(“Mississippi law is clear and unambiguous on the procedure to be followed by the employer

or its insurer in intervening or joining in the cause of action.           It is equally clear and

unambiguous in setting forth the mandatory distribution to be made of any amount

recovered.”).

¶10.    Clearly, the requirements for application of Section 71-3-71 are met by the facts of this

case:   Federated paid workers’ compensation benefits to McNeal pursuant to the Mississippi

workers’ compensation statutes,         and    McNeal recovered      money from the third-party

defendants.     Thus, the money recovered by McNeal from the defendants, after deducting

collection and attorneys’ fees, must next be used to reimburse the workers’ compensation

                                                   4
provider.     Therefore, McNeal is statutorily required to reimburse Federated      for the workers’

compensation benefits it paid him.

        II.      The “Made Whole” Doctrine

¶11.    In refusing to order the reimbursement, the circuit court relied on this Court’s decision

in Hare, 733 So. 2d at 279, wherein Hare was insured by both a health insurance policy and an

uninsured motorist policy.     Hare suffered injuries in an automobile accident and collected

approximately $6,000 in medical benefits from his health insurance policy, which included the

following subrogation language: “[t]he plan shall be subrogated and shall succeed to the right

of the Employee . . . to recovery against any person, organization or other carrier.”            Id.

Thereafter, Hare settled with his uninsured motorist carrier for $10,000, and the health

insurance carrier sought reimbursement pursuant to its subrogation agreement. Id.

¶12.    In Hare, this Court engaged in a detailed analysis of the “made whole” rule, defining it

as “the general principle that an insurer is not entitled to equitable subrogation until the insured

has been fully compensated.” Id. at 281.        This decision was based on equitable common law

principles which supported the conclusion that until the insured had been fully compensated

– or made whole – no double recovery would occur. Id. at 284. This Court further stated, “the

general intent of subrogation (and the stated intent of [Hare’s health insurance policy]) is to

prevent a double recovery by the insured.” Id. at 285. Finally, this Court noted that the “made

whole” rule “is not to be overridden by contract language, because the intent of subrogation is

to prevent a double recovery by the insured . . . .” Id. at 284. Thus, because this Court found




                                                  5
that Hare had not been fully compensated for his injuries, the health insurance carrier was not

allowed to enforce its otherwise valid and enforceable contractual right of subrogation. Id.

¶13.    Federated’s subrogation rights do not spring from a contractual agreement as in Hare,

but rather are conferred by Section 71-3-71.          As the Court of Appeals stated in Mississippi

Food & Fuel Workers’ Compensation Trust v. Tackett, 778 So. 2d 136, 143 (Miss. Ct. App.

2000), a workers’ compensation insurer’s right of reimbursement “exists by virtue of statute

and must rise or fall strictly as a matter of statutory interpretation.” In reversing and rendering

a chancery court’s order denying a workers’ compensation insurer its right of reimbursement,

the Court of Appeals noted, “[a] chancellor, despite his broad equitable powers, is not free to

disregard the clear guidance of a pertinent statute simply because he concludes that it would

be unfair on the particular facts of the case to apply the statute according to its terms.” Id.3

¶14.    Thus, we find the circuit court erred when it applied the equitable “made whole”

doctrine to the statutory right of subrogation provided in Section 71-3-71.                 The Mississippi

Workers’ Compensation Act unambiguously provides the method for distributing proceeds

when, as here, an injured employee recovers from a third party.

¶15.    The circuit court’s reliance on an unpublished opinion from the Hinds County Circuit

Court4 was error.      First, our trial courts are not free to decide issues according to authority



        3
         We also recently declined to apply the “made whole” rule to an Uninsured Motorist/Under
Insured Motorist case. See United Servs. Auto. Ass’n v. Stewart, 919 So. 2d 24, 30 (Miss. 2005).
        4
           The circuit court cited the unpublished Hinds County Circuit Court opinion of Mississippi
Insurance Guaranty Ass’n v. Brewer. On July 26, 2005, the Mississippi Court of Appeals issued its
decision in Mississippi Insurance Guaranty Ass’n v. Brewer, 922 So. 2d 807 (Miss. Ct. App. 2005).
One assignment of error in Brewer was the trial court’s ruling that the “made whole” doctrine applied to
workers’ compensation subrogation liens. Id. at 812. In reversing the trial court, the Court of Appeals

                                                      6
found in unpublished circuit court opinions.      Additionally, the Arkansas case cited by the Hinds

County Circuit Court is inapposite. In Jaynes, the Arkansas Supreme Court applied the “made

whole” doctrine to an Arkansas workers’ compensation subrogation lien statute which had

previously been found vague and ambiguous. 33 S.W.3d at 165. The Arkansas statute entitled

the compensation carrier to a first lien on only two-thirds of the net proceeds recovered in a

third-party action.   Id.    The statute required one-third of the remainder of the proceeds go to

the injured employee.       Id.   Considering the depth and breadth of Mississippi precedent on this

question, reliance on a foreign jurisdiction’s interpretation of its own markedly different

subrogation statute is unnecessary.

¶16.    Thus, in the case before us today, Federated is entitled to satisfaction of its workers’

compensation subrogation lien in the amount of $66,412.10.

        III.    Federated’s Failure to Intervene

¶17.    Relying only on its statutory right of subrogation, Federated appealed the circuit court’s

decision denying its motion for subrogation.            Federated admits it did not formally pursue

intervention pursuant to Rule 24 of the Mississippi Rules of Civil Procedure but, instead, filed

a motion for enforcement of its lien. Federated pointed out in oral argument that our case law

has not required a workers’ compensation insurer to intervene or join in an employee’s third-

party suit in order to assert its statutory lien. Indeed, Federated is correct, as this Court has

never required the insurance carrier to join or intervene in an employee’s third-party litigation




held that the workers’ compensation insurer “ha[s] a statutory right of subrogation for monies paid to” the
claimant. Id. at 813. Therefore, the circuit court’s reliance on the unpublished circuit court opinion in
denying Federated’s subrogation reimbursement was misplaced.

                                                    7
to validate or enforce its subrogated claim to the proceeds recovered in that litigation.                See,

e.g., Sneed v. Verdun, 611 So. 2d 947, 948 (Miss. 1992); Kidwell v. Gulf, Mobile & Ohio

R.R., 168 So. 2d 735, 736 (1964). However, the question before us today is different. The

issue is not whether Federated is entitled to subrogation without intervention, but rather

whether Federated may appeal the circuit court’s decision without intervention.5

¶18.    Although Mississippi lacks relevant precedent on this subject, we find the Fifth

Circuit’s approach to appeals by non-parties who did not intervene to be well-reasoned and

instructive. In SEC v. Forex Asset Management LLC, 242 F.3d 325, 328-29 (5th Cir. 2001),

the Fifth Circuit examined whether investors could appeal a district court’s order approving

a Receiver’s distribution plan when the investors were not parties named in the SEC’s

complaint and never sought to intervene under Rule 24 of the Federal Rules of Civil

Procedure.6 Acknowledging the general rule that non-parties lack standing to appeal, the Court

applied a three-part test to determine whether the investors, as non-parties, could nonetheless

appeal the district court’s order. Id. at 329. Under this test, a court inquires whether “the non-

part[y] actually participated in the proceedings below, the equities weigh in favor of hearing

the appeal, and the non-part[y] ha[s] a personal stake in the outcome.” Id. (Citations omitted).



        5
           The dissent correctly points out that Federated failed to strictly comply with the mandates of Rule
24. If this case involved Federated’s failure to comply with statutory requirements, the dissent’s arguments
would be well-taken. However, strict compliance with procedural rules is capable of being waived. See
Young v. Huron Smith Oil Co., 564 So. 2d 36, 39 (Miss. 1990) (party waived issue of compliance with
the service requirements of M.R.C.P. 4). In this case, no party ever raised the issue of Federated’s formal
intervention, and the matter only arose in response to a question posed to counsel at oral argument.
        6
         Rule 24 of the Federal Rules of Civil Procedure and Rule 24 of the Mississippi Rules of Civil
Procedure use virtually the same language to describe the requirements for intervention of right and
permissive intervention. Both Rules also require the same intervention procedure.

                                                      8
Finding the investors satisfied each prong of the three-part test, the Fifth Circuit determined

the investors had standing to appeal. Id. at 330. However, the Fifth Circuit cautioned, and we

agree, “that this decision does not indicate that parties will be given a free pass to avoid

complying with the rules of intervention.” Id.

¶19.    Looking to the first requirement of whether Federated actually participated in the

proceedings below, the circuit court and all parties to the litigation accepted Federated as

having intervened in the proceedings.            No objection was ever raised to Federated’s active

participation.   As to the second condition – weighing the equities of hearing the appeal – we

again find in favor of Federated. The circuit court’s improper imposition of the “made whole”

doctrine substantially affects Federated’s statutory           subrogation rights.   As previously

discussed, the application of Section 71-3-71 clearly requires McNeal to reimburse Federated

for the workers’ compensation benefits paid out on his behalf in the amount of $66,412.10.

Finally, the repayment of money owed to it under Section 71-3-71 gives Federated a personal

stake in the outcome, satisfying the third requirement for non-party standing.

¶20.    Although the formal procedural requirements of Rule 24 were not met, no objection

was raised to either Federated’s participation in the trial court or its pursuit of this appeal.

Additionally, Federated satisfies the test for non-party standing to appeal under Forex.

However, we stress that the better practice for insurers who anticipate the possible need for

judicial assistance in enforcing their liens is to file a formal intervention in accordance with

the provisions of Rule 24 of the Mississippi Rules of Civil Procedure.




                                                      9
                                         CONCLUSION

¶21.    For the reasons stated, we reverse the trial court’s refusal to order payment to

Federated based upon the “made whole” rule, and we remand this case for further proceedings

consistent with this opinion.

¶22.    REVERSED AND REMANDED.

       SMITH, C.J., WALLER AND COBB, P.JJ., AND CARLSON, J., CONCUR. DIAZ,
J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, GRAVES
AND RANDOLPH, JJ.

        DIAZ, JUSTICE, DISSENTING:

¶23.    Because Federated Mutual, a non-party, has no standing to appeal in this case, I must

respectfully dissent. It is absolutely uncontested that Federated Mutual never intervened at the

trial court level. The majority opinion finds that, even though Federated did not intervene via

M.R.C.P. 24, it should be allowed to appeal an action in which they were not formally involved.

This is contrary to our precedent applying Rule 24 and the Rules of Civil Procedure in general.

“We have repeatedly required strict compliance with the appeal provisions of our rules and

appeal statutes.” Bertucci v. Miss. Dep’t of Corrs., 597 So. 2d 643, 647 (Miss. 1992).

¶24.    Indeed, Federated Mutual never even sought to intervene, and only now asks on appeal

that we accept it as an intervenor. To intervene in a trial court action is not difficult. Rule 24

has one of the lowest standards of any rule: “[u]pon timely application, anyone shall be

permitted to intervene in an action . . . when the applicant claims an interest relating to the

property or transaction which is the subject of the action . . . .” (emphasis added). If Federated

Mutual wished to participate in the trial court proceedings, it simply needed to file a motion.




                                                10
¶25.    The majority ignores that “the rule that only parties to a lawsuit, or those that properly

become parties, may appeal an adverse judgment is well settled.” Marino v. Ortiz, 484 U.S.

301, 304, 108 S. Ct. 586, 587, 98 L. Ed. 2d 629 (1988) (per curiam). The Marino Court

concluded that “the better practice is for such a nonparty to seek intervention for purposes of

appeal.” Id. Federated Mutual could have intervened in the trial court, but it chose not to.

¶26.    In examining the Marino opinion and applying it as precedent, the First Circuit noted

that “[h]istory confirms the accuracy of th[e] description” of the “well settled” rule of not

allowing appeals by non-parties. Microsystems Software, Inc. v. Scandinavia Online AB, 226

F.3d 35, 40 (1st Cir. 2000).        That court ultimately concluded that “courts are powerless to

extend a right of appeal to a nonparty who abjures intervention” in situations “when intervention

is readily available.” Id. at 40. In obeying Marino, the Seventh Circuit put it simply: “Without

an appeal, we have no jurisdiction . . . [and] [w]e do not have the power to decide cases of which

we lack jurisdiction, for jurisdiction is power to decide.” SEC v. Wozniak, 33 F.3d 13, 15 (7th

Cir. 1994).

¶27.    A non-party attempting to appeal is apparently a matter of first impression with our

Court, although we have previously decided when a motion to intervene is proper.               Our

precedent holds that a motion to intervene may be denied if it is filed in an untimely manner,

subject to a four-part test.     City of Tupelo v. Martin, 747 So. 2d 822, 829 (Miss. 1999)

(“Regardless of whether intervention of right or permissive intervention is sought, in either

case the motion must be timely”).        In Martin we ultimately denied the motions to intervene

because of untimeliness, even though that meant the “harsh” dismissal of two wrongful death



                                                   11
lawsuits.    Id. at 829. We have required strict adherence to other Rules of Civil Procedure in

the past. Perry v. Andy, 858 So. 2d 143, 148 (Miss. 2003) (even “pro se plaintiffs must be

held to a strict compliance standard under Miss. R. Civ. P. 4(h)”); Foster v. Noel, 715 So. 2d

174, 182-83 (Miss. 1998) (requiring strict compliance with Rule 26 “to prevent trials from

being tainted with surprise and unfair advantage”).7            We have also recently underscored the

requirement of strict compliance with statutory pre-requirements to litigation.              See Arceo v.

Tolliver, __ So. 2d __, 2006 Miss. LEXIS 650 (Miss. Nov. 16, 2006) (requiring strict

compliance with Section 15-1-36 (15), which requires a 60-day notice be provided to medical

providers prior to suit); Pitalo v. GPCHP-GP, Inc., 933 So. 2d 927 (Miss. 2006); Univ. of

Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 819-20 (Miss. 2006) (requiring strict

compliance with Section 11-46-11(1), which requires 90 days notice prior to suit against a

governmental entity).

¶28.     The majority today would overrule our entire line of cases interpreting Rule 24–for

apparently there is no need for a test examining timeliness, as timeliness no longer matters at

all.   As discussed above, the burdens of intervention are not heavy.             Second, the Rules were

adopted for a reason:         to provide a comprehensive and orderly framework for litigation,

understandable by       practitioners, judges, and litigants.    By casting aside the plain language of



         7
         The majority opinion ignores these citations to the recent cases holding that we must strictly follow
certain rules of civil procedure. However, the opinion fails to cite even one case that supports this
proposition. Instead, it looks to Young v. Huron Smith Oil Co., 564 So. 2d 36, 39 (Miss. 1990) for
support. Young is further support for respecting the orderly language and processes the Rules provide.
In that case, we found a party waived a Rule 12 defense because “we have consistently held that failure
to assert the defense in an answer, motion or other pre-responsive pleading is a waiver that will be
enforced.” Id. at 39. This waiver is expressly created by the rules. M.R.C.P. 12(h)(1).

                                                     12
the rules and adhering to a “close enough” standard, the majority thwarts the very reason for

having our rules.       And as we have said before, “[a] rule which is not enforced is no rule.”

Bertucci, 597 So. 2d at 647 (internal quotation & citation omitted).

¶29.    The majority also takes a passive approach to Federated Mutual’s standing before this

Court that is contrary to our case law. The majority notes that “[i]n this case, no party ever

raised the issue of Federated’s formal intervention, and the matter only arose in response to

a question posed to counsel at oral argument.”         This fact is meaningless, since “[t]his Court

may sua sponte dismiss a case for lack of standing whether it was raised in the court below

or not.” Benedict v. City of Hattiesburg, 693 So. 2d 377, 381 (Miss. 1997) (emphasis added).

We decided likewise in State v. Hicks, 806 So. 2d 261, 263 (Miss. 2002).             Then Presiding

Justice Smith, writing for the Court, held that even when “the issue of whether [a party] has

standing to prosecute [an] appeal has not been raised by the parties, this Court may sua sponte

address the question of standing.” Id. at 263 (citing Benedict v. City of Hattiesburg, 693 So.

2d 377, 381 (Miss. 1997).

¶30.    Because the majority today ignores well-settled law, our Rules of Civil Procedure, and

overturns precedent regarding the application of Rule 24 and our Rules in general, I

respectfully dissent.

        EASLEY, GRAVES, AND RANDOLPH, JJ., JOIN THIS OPINION.




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