                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 05-3184
SCHNEIDER NATIONAL CARRIERS,
INCORPORATED,
                                             Plaintiff-Appellant,
                                v.

NATIONAL EMPLOYEE CARE SYSTEMS,
INCORPORATED, and CARMELO MENIST,
                                          Defendants-Appellees.
                         ____________
           Appeal from the United States District Court
    for the Southern District of Indiana, Indianapolis Division.
         No. 03 C 301—Larry J. McKinney, Chief Judge.
                         ____________
 ARGUED FEBRUARY 6, 2006—DECIDED NOVEMBER 27, 2006
                    ____________


 Before FLAUM, ROVNER and SYKES, Circuit Judges.
  SYKES, Circuit Judge. This case concerns the lien
rights of a worker’s compensation carrier under Indiana
law. An Indiana trucker was injured on the job in an
accident with another trucker and received worker’s
compensation benefits. He then sued the tortfeasor’s
employer. The worker’s compensation carrier initially
sought intervention but later withdrew the motion after
receiving assurances that its lien or subrogation rights
under Indiana law would be protected. The employee and
the tortfeasor then entered into a settlement without
2                                                No. 05-3184

notifying or obtaining the consent of the worker’s compensa-
tion carrier. This was a violation of IND. CODE § 22-3-2-13,
which specifically requires the written consent of the
worker’s compensation carrier in order for a settlement
to be valid.
  The settlement agreement provided that the tortfeasor’s
employer would assume responsibility for negotiating
with the worker’s compensation carrier over its lien rights
and promised to defend and indemnify the injured trucker
against any liability or judgment for the carrier’s lien. The
present suit was filed when these negotiations failed. The
district court ordered judgment in favor of the worker’s
compensation carrier against the tortfeasor’s employer
on the basis of IND. CODE § 22-3-2-13 and the language in
the settlement agreement by which the tortfeasor’s em-
ployer assumed responsibility for any judgment regarding
the carrier’s lien rights. We affirm.


                      I. Background
  Carmelo Menist is an Indiana truck driver who was
injured in a work-related collision with a truck driven by an
employee of plaintiff Schneider National Carriers, Inc.
(“Schneider”). National Employee Care Systems (“NECS”)
is the third-party administrator for Carolina Casualty
Company, the worker’s compensation carrier for Menist’s
employer, Burlington Motor Carriers. Following the acci-
dent, Menist received approximately $116,000 in worker’s
compensation benefits from NECS.
  Menist then sued Schneider in state court in Pennsylva-
nia, where the accident occurred, and the case was removed
to the United States District Court for the Middle District
of Pennsylvania. NECS moved to intervene in the suit in
order to protect its lien or subrogation rights, but Schneider
opposed the motion, arguing that intervention was unneces-
No. 05-3184                                                       3

sary because Menist’s attorney “has acknowledged the lien
or subrogation right at issue, and has fulfilled his duty to
the subrogation carrier in writing that the subrogation right
will be honored, protected and reimbursed from settlement
proceeds.”1 Before the district court ruled on the interven-
tion motion, NECS entered into a “Stipulation of
Subrogation Lien” agreement with Menist stating that
Menist would “recognize and agree to honor the subrogation
lien [of NECS] pursuant to and consistent with the afore-
mentioned Pennsylvania and Indiana law.” For its part,
NECS agreed to withdraw its intervention motion upon
execution of the stipulation, and promptly did so. Schneider
was not a party to the stipulation.
  Menist and Schneider then settled the lawsuit for
$85,000—substantially less than the $116,000 in worker’s
compensation benefits NECS had paid. NECS was not a
party to the settlement agreement, did not participate
in settlement discussions, and did not give its consent to the
settlement as required by IND. CODE § 22-3-2-13. Despite
the presettlement representations of Schneider and Menist
that NECS’s lien rights would be “honored” and “protected,”
NECS was never paid any portion of the settlement pro-
ceeds by either Menist or Schneider. Instead, the settling
parties provided in their written settlement agreement that
Schneider would assume responsibility for negotiating with
NECS regarding its lien rights and indemnify and defend
Menist against any lien claim by NECS. More specifically,
the settlement agreement provided that Schneider would:
    [N]egotiate with [NECS] to the extent that [NECS] has
    paid for medical services and income loss benefits


1
   Schneider’s position was based upon correspondence in the
record from Menist’s attorney to NECS stating in part: “I have
received your notice of subrogation claim and will see that
your claim is protected. Your claim will be paid upon distribu-
tion of any funds from the settlement proceeds of the claim . . . .”
4                                                No. 05-3184

      rendered to Mr. Menist as a result of alleged injuries
      and damages that Mr. Menist contends was [sic]
      causally related to the May 28, 1999 accident . . . . If
      [Schneider] cannot negotiate a reasonable settlement
      with [NECS,] [Schneider] agree[s] to defend any lawsuit
      filed against [Menist] . . . seeking reimbursement for
      expenses incurred as a result of this accident. [Schnei-
      der] hereby promise[s] to satisfy any judgment which
      might result from such a lawsuit but only to the extent
      of fault assessed against [Schneider] (by judgment or
      stipulation), and only to the extent that their medical
      expenses are reasonable, necessary, customary and
      causally related to the accident of May 28, 1999 . . . .
  After the case was dismissed by stipulation on the basis
of the settlement, attorneys representing Schneider and
NECS discussed payment of NECS’s lien claim, as con-
templated by the settlement agreement. It appears, how-
ever, that negotiations broke down on the issue of whether
the lien amount was reasonable, necessary, and caused by
Schneider’s employee’s negligence. The record does not
disclose the specifics of the dispute; we are told only that
the negotiations between Schneider and NECS were
unsuccessful in resolving NECS’s lien claim.
  Schneider then filed the present action against NECS and
Menist seeking a judicial declaration of its rights and
obligations vis-à-vis NECS and Menist with respect to the
worker’s compensation lien.2 NECS counterclaimed against
Schneider and crossclaimed against Menist seeking enforce-
ment of its lienholder rights and recovery from either
Schneider or Menist. The parties agreed that Indiana law
applied and that no material facts were in dispute and
submitted the case to the district court for resolution on
crossmotions for summary judgment.


2
    Menist has not appeared in this action.
No. 05-3184                                                 5

   The district court awarded summary judgment to NECS
and against Schneider and Menist jointly and severally
in the amount of $56,666.66, representing the $85,000
settlement minus the one-third contingency fee that
would have gone to Menist’s attorney if the settlement
had been properly handled in the first place. Based on the
indemnity provision in the settlement agreement, the
district court held that Schneider was responsible for
paying the judgment. Schneider appeals, arguing that
NECS waived its subrogation and lien rights by failing
to intervene in the suit against Schneider or timely insti-
tute its own suit as Menist’s subrogee. Alternatively,
Schneider argues that NECS is limited to recovering its lien
amount from Menist, not Schneider, because Schneider was
under no duty to protect NECS’s interests and any promises
it made Menist to the contrary were invalid.


                      II. Discussion
A. Indiana Law
  Under Indiana law (which the parties agree applies here),
NECS’s lien rights are clearly established by operation of
IND. CODE § 22-3-2-13, which provides in pertinent part:
    [T]he injured employee . . . may commence legal pro-
    ceedings against the other person to recover damages
    notwithstanding the . . . compensation insurance car-
    rier’s payment of . . . compensation . . . . In that case,
    however, if the action against the other person
    is brought by the injured employee . . . and . . . settle-
    ment is made with the other person, either with or
    without suit, then from the amount received by the
    employee . . . there shall be paid to the . . . employer’s
    compensation insurance carrier . . . the amount of
    compensation paid to the employee . . . .
    ....
6                                                   No. 05-3184

      If the injured employee . . . shall agree to receive
    compensation from . . . the employer’s compensation
    insurance carrier . . . the employer’s compensation
    insurance carrier shall have a lien upon any settlement
    award . . . out of which the employee might be com-
    pensated from the third party. (Emphasis added.)
IND. CODE § 22-3-2-13, paras. 1, 4. The statute protects
a worker’s compensation carrier’s lien rights by requir-
ing the lienholder’s approval of any settlement between
the injured employee and the third-party tortfeasor: “No
release or settlement . . . shall be valid without the written
consent of the [insurer] . . . , except . . . consent shall not be
required where the [insurer] has been fully indemnified or
protected by court order.” IND. CODE § 22-3-2-13, para. 9.
  The Supreme Court of Indiana has described the pur-
pose of this statute as follows:
    The section provides for only two means of settling
    a claim against a third party. The employer must either
    give written consent or be ‘fully indemnified or pro-
    tected by court order.’ The reason the legislature
    required written consent as one alternative is obvious.
    Because settlement serves as a bar to further recovery
    against the third party, State v. Mileff, 520 N.E.2d 123,
    126 (Ind. Ct. App. 1988), without a consent require-
    ment, an employee could settle a lawsuit for an amount
    well below medical and disability costs and leave the
    employer with nowhere to turn for the additional money
    owed. Requiring the written consent of the employer is
    designed to protect an employer from being
    shortchanged without its advance approval.
Koval v. Simon Telelect, Inc., 693 N.E.2d 1299, 1309 (Ind.
1998). The Koval court also held that the statute serves
to prevent double recovery by the injured employee and
provides a mechanism for an employer (or its worker’s
compensation insurance carrier) to “be paid without further
No. 05-3184                                                  7

litigation.” Id. (“ ‘Protecting’ the employer, by providing the
employer with the means of assuring reimbursement, is
along with preventing double recovery, one of the twin
purposes of the section.”).
   Finally, the statute permits, but does not require, an
employer (or its worker’s compensation carrier) to join in an
action commenced against the third party: “The employer
may, within ninety (90) days after receipt of notice of suit .
. . join in the action upon his motion so that all orders of
court after hearing and judgment shall be made for his
protection.” IND. CODE § 22-3-2-13, para. 8.


B. Intervention and the Stipulation of Subrogation
   Lien Agreement
  Schneider’s first attack on the district court’s decision
is to argue that NECS waived any lien claim by choosing
not to intervene as a party in the Pennsylvania lawsuit.
Schneider contends that because intervention was available
to NECS as a means of achieving judicial protection of its
rights, NECS’s failure to intervene should preclude it from
looking to the court to save it from its own procedural
misstep. Schneider makes repeated reference to NECS’s
“failure to protect its lien” and argues that in the absence of
affirmative action by NECS to protect its own interests, it
was not incumbent upon either Schneider or Menist to “look
out for” NECS during the settlement negotiations.
   No doubt in hindsight NECS regrets that it withdrew its
intervention motion in the Pennsylvania action. But there
is nothing in the Indiana statute or its interpretive case law
that makes intervention anything other than permissive;
there is no authority for the proposition that intervention is
a necessary prerequisite to the operation of the statutory
lien rights (although it may be the most efficient way to
protect those rights). Indeed, an insurer’s lien rights arise
by operation of the statute itself without any requirement
8                                                No. 05-3184

of a positive act on the part of the insurer. Schneider
acknowledged as much in its opposition to NECS’s motion
to intervene in the Pennsylvania suit. There, Schneider
asserted as follows: “It is specifically denied that the
worker’s compensation carrier herein must intervene to
protect their [sic] subrogation rights.”
  Schneider cannot have it both ways. NECS’s lien rights,
and the requirement that Menist and Schneider obtain
NECS’s written consent to the settlement, were not depend-
ent upon NECS’s intervention in the lawsuit. NECS did not
waive its lien rights by withdrawing its motion to intervene.
Schneider and Menist were in no way relieved of the
requirements of § 22-3-2-13 by virtue of NECS’s withdrawal
of its intervention motion.
   Similarly unpersuasive is Schneider’s insistence that
NECS’s decision to enter into the “Stipulation of
Subrogation Lien” with Menist operated as a waiver or
otherwise relieved Schneider of any obligation to comply
with the requirements of the statute. It is true that Schnei-
der was not a party to this stipulation, but the document
essentially amounts to nothing more than an unnecessary
agreement by Menist that he will “recognize” and “respect”
the lien rights that already existed by operation of the
statute, with or without any stipulation. Both Menist and
Schneider were required to “recognize” and “honor” NECS’s
lien (to use the language of the stipulation) by virtue of the
statute creating it. We fail to see why or how Menist’s
written agreement to respect NECS’s statutory lien rights
could be read as a negative injunction relieving Schneider
of any duty to do so.


C. Subrogation
  Under IND. CODE § 22-3-2-13, if an employee brings an
action against the third-party tortfeasor and the action is
“dismissed,” the insurance carrier has one year following
No. 05-3184                                                  9

the dismissal within which to “collect in [its] own name
or in the name of the injured employee . . . from the
other person in whom legal liability for damages exists,
the compensation paid or payable to the injured em-
ployee . . . .” IND. CODE § 22-3-2-13, para. 5. As is pertinent
to the circumstances here, the Indiana courts have inter-
preted this provision as precluding a worker’s compensation
carrier from bringing a separate action in its own name
pursuant to the right of subrogation where the employee
has already maintained a “successful action,” that is,
commenced a lawsuit and brought it “to a successful
conclusion by judgment or . . . pre-trial settlement.” Norris
v. U.S. Fid. & Guar. Co., 436 N.E.2d 1191, 1193-94 (Ind. Ct.
App. 1982) (“[W]here the employer’s compensation insur-
ance carrier is precluded from bringing suit by a settlement
or judgment obtained by the injured employee against a
third-party tortfeasor, subrogation is not at issue.”). In
other words, where the injured employee sues and is
successful—success taking the form of either judgment or
settlement—the insurance carrier “is a lienholder, not a
subrogee.” Id. at 1194.
  Schneider argues that to the extent that its settlement of
the lawsuit with Menist was invalid under § 22-3-2-13 for
failing to obtain NECS’s consent, the Pennsylvania lawsuit
cannot be deemed a “successful action” by Menist and
NECS was required to initiate a separate subroga-
tion action within one year of the dismissal of the suit.
Because NECS did not initiate a subrogation action within
a year of the stipulated dismissal of Pennsylvania suit,
Schneider maintains NECS has forfeited any right to assert
its statutory lien rights.
 This argument is clever but ultimately unpersuasive.
Menist negotiated a settlement of his Pennsylvania lawsuit
with Schneider, acquiring $85,000 and an agreement by
which Schneider indemnified him against any attempt by
NECS to enforce its lien rights against the settlement
10                                              No. 05-3184

proceeds. This was a “successful conclusion” of the action
under any reasonable understanding of the phrase. Schnei-
der cites no authority for the proposition that settling
parties’ noncompliance with the insurer consent require-
ment of § 22-3-2-13 extinguishes the insurer’s statutory lien
rights, leaving only the subrogation remedy. Accepting
Schneider’s argument would obliterate a central purpose of
the statute, which is to establish and protect the reimburse-
ment rights of worker’s compensation insurers without the
need for additional litigation. See Koval, 693 N.E.2d at
1309. If Schneider is right, injured employees and tortfea-
sors would be encouraged to quietly settle their cases
without notifying or consulting the worker’s compensation
lienholder—in other words, to intentionally disregard the
statutory consent requirement—in the hope that the carrier
will not discover the settlement in time to intervene to
invalidate the settlement or assert a subrogation claim.
Approving this interpretation would run counter to the
statute’s objectives as identified by the Indiana Supreme
Court in Koval.


D. Remedy
   Schneider’s attacks on NECS’s lien rights having failed,
the only remaining question is remedy. The district court
concluded that because NECS had statutory lien rights and
the settling parties did not comply with the insurer consent
requirement of § 22-3-2-13, they were jointly and severally
liable to NECS in the amount of $56,666.66—the $85,000
settlement amount minus the one-third contingency attor-
ney’s fee. Then, because the settlement agreement also
required Schneider to defend and indemnify Menist and to
satisfy any judgment in favor of NECS, the district court
held that Schneider was responsible for paying the judg-
ment.
No. 05-3184                                               11

   Schneider argues that this remedy was improper in that
NECS’s lien attached only to the $85,000 (minus attorney’s
fees) already in Menist’s possession, and that Schneider
cannot be held responsible for an additional $56,666 above
and beyond what it already paid to Menist. Schneider
contends that any judgment in favor of NECS should
have been against Menist alone. Schneider bases this
argument on the following: (1) the Stipulation of
Subrogation Lien agreement in which Menist, not Schnei-
der, agreed to “honor” NECS’s lien rights; (2) the language
in § 22-3-2-13 stating that in the event of settlement, the
insurer shall be paid “from the amount received by the
employee”; and (3) Indiana law to the effect that “[a] valid
lien created on real or personal property is enforceable
against the property in the hands of any person with notice
of the lien who subsequently acquires it,” State v. Mileff,
520 N.E.2d 123, 128 (Ind. Ct. App. 1988). Schneider also
argues that the failure to obtain NECS’s consent to the
settlement voids the agreement—including the indemnifica-
tion promise made by Schneider to Menist.
  Schneider’s arguments are foreclosed by the simple fact
that in settling the lawsuit, Schneider bound itself not
to assert the very position it now takes. The language of the
settlement agreement plainly obligates Schneider to assume
all responsibility for satisfying NECS’s lien rights, regard-
less of whether other legal principles would have operated
to make Menist liable to NECS. Perhaps, absent the specific
language of this agreement, NECS would be required to
look to Menist for recovery on its lien, but in this case the
settlement agreement specifically shifted this responsibility
to Schneider. The agreement specifies that Schneider, not
Menist, would henceforward assume responsibility for
negotiating a “reasonable settlement” with NECS, and
failing that, would indemnify Menist against any future
judgment in NECS’s favor. The agreement does not provide,
either expressly or by implication, that Schneider, in
12                                              No. 05-3184

assuming these responsibilities, retained a right to disclaim
liability for NECS’s lien recovery by virtue of having paid
Menist. Indeed, quite the opposite is true: The agreement
plainly contemplates that Schneider would pay, above and
beyond the $85,000 it paid to Menist, to either “settle” with
NECS or satisfy any judgment against Menist in NECS’s
favor.
  Having agreed to these terms, with full awareness of the
existence and amount of NECS’s lien and the fact that
NECS was improperly excluded from the settlement
negotiations in violation of Indiana law, Schneider cannot
now argue that NECS must look to Menist alone. The
bottom line is Schneider and Menist knowingly settled
the case for less than the amount of the worker’s compensa-
tion lien without notifying NECS and placed the risk
of liability to NECS squarely on Schneider. The planned-for
contingency now having arrived, Schneider cannot use its
own noncompliance with the consent requirement of
the Indiana statute as a sword to defeat its liability to
NECS.
  The judgment of the district court is AFFIRMED.
No. 05-3184                                         13

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—11-27-06
