             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-63

                                Filed: 2 August 2016

Duplin County, No. 10 CVS 952

THOMAS DAVID DION, Plaintiff,

            v.

WILLIAM ROBERT BATTEN, SR., Defendant.


      Appeal by Plaintiff and Unnamed Defendants Neuwirth Motors and

Brentwood Services, Inc. from order entered 4 June 2015 by Judge W. Allen Cobb, Jr.

in Superior Court, Duplin County. Heard in the Court of Appeals 6 June 2016.


      Baker & Slaughter, by H. Mitchell Baker, for Plaintiff.

      Teague Campbell Dennis & Gorham, LLP, by Bruce A. Hamilton, Matthew W.
      Skidmore, and Justin G. May, for Unnamed Defendants Neuwirth Motors and
      Brentwood Services, Inc.

      Hoof & Hughes, PLLC, by J. Bruce Hoof, for Unnamed Defendant Foremost
      Insurance Company.

      Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Ellen P. Wortman, for
      Unnamed Defendant Government Employees Insurance Company.


      McGEE, Chief Judge.


      Thomas David Dion (“Plaintiff”), Neuwirth Motors (“Neuwirth”), and

Brentwood Services, Inc. (“Brentwood”) appeal from an order determining the
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                                        Opinion of the Court



amount of a workers’ compensation subrogation lien on a judgment obtained by

Plaintiff against William Robert Batten, Sr. (“Defendant”). We affirm.

                                          I. Background

       Plaintiff was employed by Neuwirth as a servicing agent. In the course and

scope of his employment with Neuwirth, Plaintiff was driving on Oriole Drive in

Wilmington, North Carolina on 20 March 2008, when the vehicle he was driving was

struck by a vehicle driven by Defendant, who had failed to stop at a red light. As a

result of the crash, Plaintiff sustained multiple injuries. Because the crash occurred

during the course and scope of Plaintiff’s employment with Neuwirth, Plaintiff was

entitled to, and filed a claim for, workers’ compensation benefits pursuant to Chapter

97 of the North Carolina General Statutes. Plaintiff, Neuwirth, and Neuwirth’s

workers’ compensation servicing agent, Brentwood, agreed that Plaintiff was entitled

to $528,665.61 for injuries sustained in the crash. The agreement between Plaintiff,

Neuwirth, and Brentwood was approved by the Industrial Commission by order

entered 14 November 2012.1 Pursuant to N.C. Gen. Stat. § 97-10.2(f), Neuwirth and

Brentwood asserted a lien against any third party recovery.

        In addition to the workers’ compensation claim, Plaintiff filed the present

lawsuit against Defendant on 16 November 2010, asserting a claim of negligence.

After the complaint was filed, and as permitted by N.C. Gen. Stat. § 20-279.21(b)(4),


       1 The Industrial Commission’s order provided that Plaintiff’s attorney was to receive a fee of
$50,000.00, to be paid out of the total recovery.

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a trio of interested insurance companies entered the lawsuit by filing answers as

unnamed defendants: Nationwide Mutual Insurance Company (“Nationwide”);

Foremost Insurance Company (“Foremost”); and Government Employees Insurance

Company (“GEICO”). Defendant maintained a policy with Nationwide that provided

liability insurance coverage in the amount of $30,000.00, and underinsured motorist

coverage (“UIM coverage”) in the amount of $100,000.00.                    Plaintiff maintained

insurance policies with Foremost and GEICO that provided UIM coverage for

damages Defendant was entitled to in excess of the limits of Defendant’s Nationwide

policy.

          Sometime after filing an answer to Plaintiff’s complaint, Nationwide tendered

its policy limits of $100,000.00.2 Disbursement of the funds was approved by the

Industrial Commission by order entered 9 December 2011, and provided that the

$100,000.00 would be dispersed in equal shares to: (1) Plaintiff; (2) Plaintiff’s counsel,

for attorney’s fees; and (3) Neuwirth and Brentwood. The order also stated that

“[n]othing contained in this Order shall be construed as a waiver of . . .

defendant/workers’ compensation carrier’s lien.                Plaintiff and defendant/workers’




          2
          UIM coverage “is deemed to apply to the first dollar of an underinsured motorist coverage
claim beyond amounts paid to the claimant under the exhausted liability policy.” N.C. Gen. Stat. §
20-279.21(b)(4) (2015). The limit of UIM coverage “applicable to any claim is determined to be the
difference between the amount paid to the claimant under the exhausted policy . . . and the limit of
[UIM coverage] applicable to the motor vehicle involved in the accident.” Id. Accordingly, Nationwide
paid $30,000.00 under the “exhausted policy,” and $70,000.00 in UIM coverage, for a total of
$100,000.00.

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compensation carrier explicitly acknowledge the defendant/workers’ compensation

carrier’s right to assert a lien against the proceeds of any additional third-party funds

paid to [P]laintiff.” Plaintiff’s insurance policies with Foremost and GEICO each

provided that either party had the option to require arbitration. Plaintiff, Foremost,

and GEICO decided to exercise that option, and the matter was referred to

arbitration. Arbitration began on 8 April 2015 and, on 13 April 2015, the arbitration

panel decided Plaintiff was entitled to recover $285,000.00 from Defendant for

personal injuries sustained in the 20 March 2008 crash.

        The trial court entered the arbitration award as a judgment on 12 May 2015.

R p 36. In entering the judgment, the trial court determined that the arbitration

award “should be reduced by the amount of $100,000.00 which had previously been

paid to Plaintiff” by Nationwide. The trial court awarded interest on the full amount,

$285,000.00, from 16 November 2010, when the lawsuit was filed, to 9 December

2011, when Nationwide tendered its policy limits. The trial court also awarded

interest on the reduced amount, $185,000.00, from 10 December 2011 through 1 May

2015.

        Foremost filed a motion on 4 May 2015 to determine the subrogation amount

pursuant to N.C.G.S. § 97-10.2(j), and the trial court held a hearing on Foremost’s

motion three days later. Following the hearing, the trial court entered a written order

on 4 June 2015 “determin[ing]” the appropriate amount of Neuwirth’s and



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Brentwood’s workers’ compensation subrogation lien. The trial court concluded as a

matter of law that the

             rights to, and the amount of the employers and workers[’]
             compensation carrier’s lien under [N.C.G.S. §] 97-10.2 were
             created by, and set forth and defined in, and are limited by
             [N.C.G.S. §] 97-10.2 and specifically sub-sections (f)(1)c.
             and (j)[.] . . . As that lien is a creature of statute, employers
             and workers[’] compensation carriers necessarily have no
             right to recover any amount of money by reason of such lien
             which is greater than, or other than such amount as
             provided by [N.C.G.S.] § 97-10.2(f)(1)c. and (h).

The trial court further concluded that although Neuwirth and Brentwood paid

workers’ compensation benefits to Plaintiff totaling $528,665.61, “their workers[’]

compensation subrogation lien [could not] exceed $285,000.00, that being the total

amount of the [j]udgment obtained by [Plaintiff] in this lawsuit in compensation for

his injuries.”   Accordingly, the trial court found the amount of the workers’

compensation subrogation lien to be “$190,000.000, which is calculated by

subtracting attorney’s fees ($95,000.00), interest ($74,291.50) and court costs

($160.00) from the judgment amount obtained by Plaintiff [] by [j]udgment in this

lawsuit ($359,451.50).” Plaintiff, Brentwood, and Neuwirth appeal.

                                       II. Analysis

      Plaintiff, Brentwood, and Neuwirth (collectively, “Appellants”) present two

jurisdictional arguments: (1) Foremost – as a “third party,” and not an “employer” or

“employee” – lacked standing to apply for a determination of the subrogation amount;

and (2) even if Foremost did have standing, the trial court nevertheless acted outside

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of its subject matter jurisdiction when ruling on Foremost’s motion.                            In the

alternative, Appellants contend the trial court: (1) misinterpreted N.C. Gen. Stat. §

97-10.2(j); (2) abused its discretion by reducing the amount of the workers’

compensation lien from the “statutory amount;” and (3) erred by failing to make

findings of fact that adequately evidenced the trial court’s consideration of a

statutorily required factor.

                                            (A) Standing

        Appellants contest Foremost’s standing to apply for a determination of the

subrogation amount. Standing “refers to whether a party has a sufficient stake in an

otherwise justiciable controversy that he or she may properly seek adjudication of the

matter.” Lee Ray Bergman Real Estate Rentals v. N.C. Fair Housing Ctr., 153 N.C.

App. 176, 179, 568 S.E.2d 883, 886 (2002) (citing Sierra Club v. Morton, 405 U.S. 727,

31 L. Ed. 2d 636 (1972)).3 “Standing is a necessary prerequisite to the court’s proper

exercise of subject matter jurisdiction.” Creek Pointe Homeowner’s Ass’n v. Happ, 146

N.C. App. 159, 164, 552 S.E.2d 220, 225 (2001), disc. review denied, 356 N.C. 161, 568

S.E.2d 191 (2002). “If a party does not have standing to bring a claim, a court has no

subject matter jurisdiction to hear the claim.” Coker v. DaimlerChrysler Corp., 172

N.C. App. 386, 391, 617 S.E.2d 306, 310 (2005) (citation omitted). Whether a party


        3 While Appellants did not challenge Foremost’s standing in the trial court, “subject matter
jurisdiction exists only if a plaintiff has standing and subject matter jurisdiction can be raised at any
time in the court proceedings, including on appeal.” Village Creek Prop. Owners’ Ass’n, Inc. v. Town of
Edenton, 135 N.C. App. 482, 485 n.2, 520 S.E.2d 793, 795 n.2 (1999) (citation omitted).

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has standing is a question of law that this Court reviews de novo. Indian Rock Ass’n

v. Ball, 167 N.C. App. 648, 650, 606 S.E.2d 179, 180 (2004). “Under a de novo review,

the [C]ourt considers the matter anew and freely substitutes its own judgment for

that” of the trial court. Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 337,

678 S.E.2d 351, 354 (2009) (citation and internal quotation marks omitted).

        In determining whether N.C.G.S. § 97-10.2(j) confers standing upon Foremost

to apply for a determination of the subrogation amount, we begin with the text of the

statute. See Correll v. Division of Social Services, 332 N.C. 141, 144, 418 S.E.2d 232,

235 (1992) (“Statutory interpretation properly begins with an examination of the

plain words of the statute.” (citation omitted)). “When the language of a statute is

clear and unambiguous, there is no room for judicial construction, and the courts

must give it its plain and definite meaning.” Lemons v. Old Hickory Council, 322 N.C.

271, 276, 367 S.E.2d 655, 658 (1988) (citations omitted); see also State v. Wiggins, 272

N.C. 147, 153, 158 S.E.2d 37, 42 (1967) (“It is elementary that in the construction of

a statute words are to be given their plain and ordinary meaning unless the context,

or the history of the statute, requires otherwise.” (citation omitted)).

        The statute at issue in this case, N.C.G.S. § 97-10.2(j), provides in relevant

part:

              Notwithstanding any other subsection in this section, in
              the event that a judgment is obtained by the employee in
              an action against a third party, or in the event that a
              settlement has been agreed upon by the employee and the


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             third party, either party may apply to the resident superior
             court judge of the county in which the cause of action arose
             or where the injured employee resides, or to a presiding
             judge of either district, to determine the subrogation
             amount.

N.C. Gen. Stat. § 97-10.2(j) (2015) (emphasis added). Considering the words as they

appear in the statute, and giving those words their plain and ordinary meaning, it is

clear that N.C.G.S. § 97-10.2(j) permits Foremost to apply for a determination of the

subrogation amount.     The statute provides that when an “employee” – such as

Plaintiff – obtains a judgment against, or arrives at a settlement with, a “third party,”

then “either party may apply . . . to determine the subrogation amount.” Id. Under

subsection (j), either the “employee” or the “third party” may apply for a

determination of the subrogation amount. Thus, whether Foremost could apply for a

determination of the subrogation amount turns on whether it was a “third party” as

that term is used in the statute.

      Subsection (a) of the same statute confirms that Foremost is, indeed, a “third

party” with standing to make the motion. Subsection (a) describes who qualifies as a

“third party”:

             The right to compensation and other benefits under this
             Article for disability, disfigurement, or death shall not be
             affected by the fact that the injury or death was caused
             under circumstances creating a liability in some person
             other than the employer to pay damages therefor, such
             person hereinafter being referred to as the “third party.”




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N.C. Gen. Stat. § 97-10.2(a) (2015). Foremost, as the underinsured motorist carrier

liable for payment of damages for the injuries Defendant caused Plaintiff, meets that

statutory definition. See Levasseur v. Lowery, 139 N.C. App. 235, 238, 533 S.E.2d

511, 513-14 (2000) (noting that “under N.C. Gen. Stat. § 97-10.2, payments made by

the UIM carrier as well as the tort-feasor are from a ‘third party’” (citation omitted));

Creed v. R.G. Swaim and Son, Inc., 123 N.C. App. 124, 128-29, 472 S.E.2d 213, 216

(1996) (same). This reading of N.C.G.S. §§ 97-10.2(a) and (j) is reinforced by N.C.

Gen. Stat. § 20-279.21(b)(4), which provides that underinsured motorist insurers

“shall have the right to appear in defense of the claim without being named as a party

therein, and without being named as a party may participate in the suit as fully as if

it were a party.” N.C. Gen. Stat. § 20-279.21(b)(4) (2015).

      Appellants contend this reading of the statutory text is foreclosed by this

Court’s decision in Easter-Rozzelle v. City of Charlotte, ___ N.C. App. ___, 780 S.E.2d

244 (2015).   Specifically, Appellants point to the following excerpt from Easter-

Rozzelle:

              Pursuant to subsection (j) of [N.C. Gen. Stat. § 97-10.2],
              following the employee’s settlement with the third party,
              either the employee or the employer may apply to a superior
              court judge to determine the subrogation amount. N.C.
              Gen. Stat. § 97-10.2(j) (2013). “After notice to the employer
              and the insurance carrier, after an opportunity to be heard
              by all interested parties, and with or without the consent
              of the employer, the judge shall determine, in his
              discretion, the amount, if any, of the employer’s lien.”



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Easter-Rozzelle, ___ N.C. App. at ___, 780 S.E.2d at 248 (emphasis added). We agree

that this quotation, standing alone, appears to provide that only an “employer” or an

“employee” – but not a “third party” – may move to determine the subrogation

amount. It is well settled that “[w]here a panel of the Court of Appeals has decided

the same issue, albeit in a different case, a subsequent panel of the same court is

bound by that precedent, unless it has been overturned by a higher court.” In the

Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).

      However, it is equally well settled that “[l]anguage in an opinion not necessary

to the decision is obiter dictum and later decisions are not bound thereby.” Trustees

of Rowan Tech. v. Hammond Assoc., 313 N.C. 230, 242, 328 S.E.2d 274, 281 (1985)

(citations omitted); see also Baker v. Smith, 224 N.C. App. 423, 431 n.5, 737 S.E.2d

144, 149 n.5 (2012).

             Our Supreme Court has stressed: “[I]t is a maxim not to be
             disregarded, that general expressions in every opinion are
             to be taken in connection with the case in which those
             expressions are used. If they go beyond the case, they may
             be respected, but ought not to control the judgment in a
             subsequent suit where the very point is presented for
             decision.”

MLC Auto., LLC v. Town of Southern Pines, 207 N.C. App. 555, 564, 702 S.E.2d 68,

75 (2010) (quoting State v. Jackson, 353 N.C. 495, 500, 546 S.E.2d 570, 573 (2001)).

      An examination of Easter-Rozelle reveals that the quote Appellant’s urge us to

follow is obiter dictum. Easter-Rozelle involved the question of whether an employee,

injured during the course and scope of his employment, could seek worker’s

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compensation benefits after he had settled a personal injury claim with a third-party

tortfeasor without the employer’s or the Industrial Commission’s knowledge or

consent. Easter-Rozelle, ___ N.C. App. at ___, 780 S.E.2d at 246-50. Which parties

had standing to apply for a determination of the subrogation amount was not a

question presented for adjudication in Easter-Rozelle. See id.

      In the present case, by contrast, Plaintiff properly filed for workers’

compensation benefits, and received the Industrial Commission’s approval for

disbursement of third party funds. And, unlike in Easter-Rozelle, the standing issue

is squarely presented for adjudication in the case now before us. Accordingly, we find

the above-quoted passage from Easter-Rozelle to be obiter dictum, by which we are

not bound. We do not lightly disregard any statement in a prior published opinion of

this Court. However, applying fundamental principles of statutory construction,

discussed above, we hold that N.C.G.S. § 97-10.2(j) confers standing upon Foremost,

as a “third party,” to apply for a determination of the subrogation amount.

                           (B) Subject Matter Jurisdiction

      Appellants argue that, notwithstanding Foremost’s standing to move for a

determination of the subrogation amount, the trial court lacked subject matter

jurisdiction to rule on Foremost’s motion. Appellants contend the amount of the

workers’ compensation lien is statutorily set and, thus, the trial court has extremely

circumscribed ability to reduce the amount of the lien. Subject matter jurisdiction



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refers to a court’s “power to pass on the merits of the case,” Boyles v. Boyles, 308 N.C.

488, 491, 302 S.E.2d 790, 793 (1983), and is “conferred upon the courts by either the

North Carolina Constitution or by statute.” Dare Cnty. v. N.C. Dep’t of Ins., 207 N.C.

App. 600, 610, 701 S.E.2d 368, 375 (2010) (citation and quotation marks omitted).

Whether a trial court has subject matter jurisdiction is a question of law, which is

reviewed de novo on appeal. Phillips v. Orange County Health Dep’t, ___ N.C. App.

___, ___, 765 S.E.2d 811, 815 (2014).

      In the present case, the relevant statute provides that if: (1) a judgment is

obtained by the employee in an action against a third party; or (2) a settlement has

been agreed upon by the employee and the third party,

             either party may apply to the resident superior court judge
             of the county in which the cause of action arose or where
             the injured employee resides, or to a presiding judge of
             either district, to determine the subrogation amount. After
             notice to the employer and the insurance carrier, after an
             opportunity to be heard by all interested parties, and with
             or without the consent of the employer, the judge shall
             determine, in his discretion, the amount, if any, of the
             employer’s lien[.]

N.C.G.S. § 97-10.2(j) (emphasis added). In the present case, a judgment was obtained

by Plaintiff against Defendant, and Foremost applied – as it was entitled, see supra

at 5-11 – for a determination of the subrogation amount. Under the plain language

of the statute, the authority of the trial court was triggered, allowing it to exercise

discretion in determining the subrogation amount.           Therefore, the trial court



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possessed subject matter jurisdiction pursuant to N.C.G.S. § 97-10.2(j) to determine

the subrogation amount.

      Appellants ask us to draw a distinction between “determining” the amount of

a subrogation lien – which, in their view, a trial court lacks subject matter jurisdiction

over because the amount of the lien is statutorily set – and “reducing” or “eliminating”

the lien – over which, according to Appellants, a trial court possesses subject matter

jurisdiction, but only in a limited set of circumstances. We find no support for this

argument in the text of N.C.G.S. § 97-10.2(j) or this Court’s precedent.

      N.C.G.S. § 97-10.2(j) itself uses the word “determine,” and states that, after a

proper party has applied to a judge “to determine the subrogation amount,” the judge

“shall determine, in his discretion, the amount, if any, of the employer’s lien.”

N.C.G.S. § 97-10.2(j) (emphases supplied). It is true, as Appellants note, that cases

from this Court have used an assortment of verbs, sometimes in the same case, to

describe the trial court’s powers under N.C.G.S. § 97-10.2(j). See, e.g., Alston v. Fed.

Express Corp., 200 N.C. App. 420, 424-25, 684 S.E.2d 705, 708 (2009) (stating the

trial court has discretion under N.C.G.S. § 97-10.2(j) to “adjust” the amount of a

workers’ compensation lien”); Childress v. Fluor Daniel, Inc., 172 N.C. App. 166, 168-

69, 615 S.E.2d 868, 869-70 (2005) (stating an employer’s lien on third party recovery

can be “reduced or eliminated” pursuant to N.C.G.S. § 97-10.2); id. at 169, 615 S.E.2d

at 870 (noting that N.C.G.S. § 97-10.2(j) explicitly gives the trial court jurisdiction to



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“set” the amount of the workers’ compensation subrogation lien). However, cases

from this Court and our Supreme Court have also used “determine,” the statutory

term. Johnson v. Southern Industrial Constructors, 347 N.C. 530, 535, 495 S.E.2d

356, 358 (1998); Hieb v. Lowery, 344 N.C. 403, 409, 474 S.E.2d 323, 326 (1996); Holden

v. Boone, 153 N.C. App. 254, 259, 569 S.E.2d 711, 714 (2002); Levasseur, 139 N.C.

App. at 238, 533 S.E.2d at 513-14. Given use of the term “determine” by both

appellate courts to describe the trial court’s powers under N.C.G.S. § 97-10.2(j), and

use of that term by the General Assembly in drafting N.C.G.S. § 97-10.2(j), we decline

to draw an unyielding distinction between “reducing” or “eliminating” a workers’

compensation subrogation lien, and “determining” the amount of such a lien.

Pursuant to N.C.G.S. § 97-10.2(j), the trial court possessed subject matter jurisdiction

to rule on Foremost’s application to “determine” the subrogation amount.

                       C. Interpretation of N.C.G.S. § 97-10.2

      Appellants argue the trial court erred in its interpretation of N.C.G.S. § 97-

10.2. They contend the trial court miscalculated the statutory amount of a workers’

compensation subrogation lien, and erred by concluding that a workers’ compensation

lien cannot exceed the amount of proceeds recovered against the third party

tortfeasor.   We review the trial court’s statutory interpretation de novo.        A&F

Trademark, Inc. v. Tolson, 167 N.C. App. 150, 153, 605 S.E.2d 187, 190 (2004)

(citations omitted). Statutory interpretation begins with the plain meaning of the



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words of the statute. Radzisz v. Harley Davidson of Metrolina, 346 N.C. 84, 89, 484

S.E.2d 566, 569 (1997) (citation omitted).

      The present case involves a situation in which the amount paid by the

employee and its workers’ compensation servicing agent is much greater than the

amount of the third party recovery; while Neuwirth and Brentwood paid $528,665.61

in workers’ compensation benefits, Plaintiff was awarded a substantially smaller

sum, $285,000.00, in his third party suit against Defendant. Appellants argue that

the amount of the lien may exceed the amount of proceeds recovered against a third

party tortfeasor. We disagree.

      N.C.G.S. § 97-10.2 provides, as relevant to this argument:

              (f)(1)       . . .if an award final in nature in favor of the
                          employee has been entered by the Industrial
                          Commission, then any amount obtained by any
                          person by settlement with, judgment against,
                          or otherwise from the third party by reason of
                          such injury or death shall be disbursed by
                          order of the Industrial Commission for the
                          following purposes and in the following order
                          of priority:
              ...
                          c.     Third to the reimbursement of the
                                 employer for all benefits by way of
                                 compensation or medical compensation
                                 expense paid or to be paid by the
                                 employer under award of the Industrial
                                 Commission.
              ...

              (h)         In any . . . settlement with the third party,
              every party to the claim for compensation shall have a lien


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              to the extent of his interest under (f) hereof upon any
              payment made by the third party by reason of such
              injury . . . and such lien may be enforced against any person
              receiving such funds.

N.C.G.S. §§ 97-10.2(f)(1), (h) (emphasis added). A reading of N.C.G.S. §§ 97-10.2(f)(1)

and (h) confirms that the amount of a workers’ compensation subrogation lien cannot

exceed the amount of proceeds recovered from third party tortfeasors. N.C.G.S. §97-

10.2(h) gives an employer who has paid workers’ compensation benefits a “lien to the

extent of his interest under (f) hereof upon any payment made by the third party[.]”

N.C.G.S. § 97-10.2(h) (emphasis added). N.C.G.S. § 97-10.2(f)(1), in turn, states that

the only funds subject to the lien are the “amount obtained . . . from the third party[.]”

Intuitively, the Industrial Commission cannot disburse, and the employer cannot

have a lien on, an amount larger than the amount actually recovered from the third

party tortfeasor, in this case $285,000.00. See also Grant Constr. Co. v. McRae, 146

N.C. App. 370, 374, 553 S.E.2d 89, 91-92 (2001) (“If [an] employee is injured by a third

party, the non-negligent employer must still pay workers’ compensation benefits, but

can claim a subrogation lien on any proceeds the employee wins in a subsequent

lawsuit against the third party.” (emphasis added) (citation omitted)); George L.

Simpson, III, North Carolina Uninsured and Underinsured Motorist Insurance § 1:12

n.4 (2015-16 ed.) (noting that N.C.G.S. §§ 97-1 et seq. “gives the employer and its

workers’ compensation insurer a lien on payments made to the injured employee by

any third-party tortfeasor, to the extent of the workers’ compensation benefits paid


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to the employee. (emphasis added)). Accordingly, we hold that where the amount of

workers’ compensation benefits paid by the employer and their servicing agent to an

employee is greater than all amounts obtained by the employee from a third party

tortfeasor, the amount of the workers’ compensation lien is equal to the amount of

the judgment, and shall be disbursed pursuant to N.C.G.S. § 97-10.2.

                                D. Abuse of Discretion

      Appellants next argue the trial court abused its discretion in determining the

amount of the workers’ compensation subrogation lien to be $190,000.00. N.C.G.S. §

97-10.2(j) “grants the trial court discretion to determine the amount of a workers’

compensation lien and the trial court’s decision is reviewed on appeal under an abuse

of discretion standard.” Kingston v. Lyon Constr., Inc., 207 N.C. App. 703, 711, 701

S.E.2d 348, 354 (2010) (citation omitted). “In exercising its discretion, the trial court

is to make a reasoned choice, a judicial value judgment, which is factually supported

by findings of fact and conclusions of law sufficient to provide for meaningful

appellate review.” Id. (quotation marks, ellipses, and citation omitted).

      In its order determining the amount of Neuwirth’s and Brentwood’s workers’

compensation subrogation lien, the trial court made fourteen findings of fact cogently

identifying the parties and explaining the proceedings, both in this case and in the

workers’ compensation case between Plaintiff, Neuwirth, and Brentwood. The trial

court then made eleven conclusions of law that demonstrate its thorough



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consideration of the necessary statutory factors. Beginning with the amount of the

judgment – $285,000.00 – the trial court correctly identified that court costs,

attorney’s fees, and interest are not subject to the workers’ compensation subrogation

lien. See N.C.G.S. § 97-10.2(f)(1)a.–b. (providing that a judgment against a third

party tortfeasor “shall be disbursed” first to the “payment of actual court costs” and

second to the payment of the “fee of the attorney representing the person making

settlement or obtaining judgment”); Bartell v. Sawyer, 132 N.C. App. 484, 486, 512

S.E.2d 93, 94 (1999) (holding that a workers’ compensation lien holder is not entitled

to “a pro-rata share of the pre-judgment interest [a] plaintiff received on his third

party recovery”).

      Nevertheless, Appellants argue that the trial court abused its discretion by

determining the workers’ compensation subrogation lien was $190,000.00, because

doing so “effectively releas[ed] Foremost and GEICO from liability[.]” We do not

agree. Foremost and GEICO contractually obligated themselves to provide Plaintiff

with UIM coverage in satisfaction of the judgment obtained against Defendant. The

arbitration panel decided Plaintiff was entitled to $285,000.00 in compensation for

injuries he sustained – not $528,665.61. The trial court – in accordance with N.C.G.S.

§§ 97-10.2(f)(1)-2) and Bartell – then excluded court costs, attorney’s fees, and interest

from the amount of the judgment, and determined the amount of Neuwirth’s and




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Brentwood’s workers’ compensation subrogation lien to be $190,000.00. The trial

court did not abuse its discretion in doing so.

                 E. Sufficiency of the Trial Court’s Findings of Facts

      Finally, Appellants argue the trial court failed to make statutorily-required

findings of fact in its 4 June 2015 order. Alleged violation of a statutory mandate

presents a question of law, which we review de novo on appeal. See Brown v. Flowe,

349 N.C. 520, 523, 507 S.E.2d 894, 896 (1998). N.C.G.S. § 97-10.2(j) provides in

relevant part:

             After notice to the employer and the insurance carrier,
             after an opportunity to be heard by all interested parties,
             and with or without the consent of the employer, the judge
             shall determine, in his discretion, the amount, if any, of the
             employer’s lien, whether based on accrued or prospective
             workers’ compensation benefits, and the amount of cost of
             the third-party litigation to be shared between the employee
             and employer. The judge shall consider the anticipated
             amount of prospective compensation the employer or
             workers’ compensation carrier is likely to pay to the
             employee in the future, the net recovery to plaintiff, the
             likelihood of the plaintiff prevailing at trial or on appeal,
             the need for finality in the litigation, and any other factors
             the court deems just and reasonable, in determining the
             appropriate amount of the employer’s lien.

N.C.G.S. § 97-10.2(j) (emphasis added). Appellants contend that N.C.G.S. § 97-10.2(j)

mandates a finding by the trial court regarding the “amount of costs of the third-

party litigation to be shared between the employee and employer” (the “cost sharing

consideration”), and that, in the present case, the trial court’s order is incomplete for

failing to make any findings of fact regarding the cost sharing consideration. While

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we agree with Appellants that, under our precedents, an order must contain a finding

of fact regarding the cost of the third party litigation to be shared between the

employee and employer, we conclude that the trial court’s order in the present case

adequately addressed this required consideration.

      Subsection (j) consists of four sentences; the second and third sentences

(quoted above) are relevant to this argument. Whether N.C.G.S. § 97-10.2(j) requires

findings of fact regarding the cost of third-party litigation to be shared between an

employer and employee was squarely addressed by this Court in In re Estate of

Bullock, 188 N.C. App. 518, 655 S.E.2d 869 (2008). In Bullock, this Court quoted the

second and third sentences of subsection (j), and held that “it is clear from the use of

the words ‘shall’ and ‘and’ in subsection (j), that the trial court must, at a minimum,

consider the factors that are expressly listed in the statute. Otherwise, such words

are rendered meaningless.” 188 N.C. App. at 526, 655 S.E.2d at 874. The Court then

went on to describe “the cost of litigation to be shared between [employee] and

[employer]” as a “mandated statutory factor[],” and faulted the trial court in that case

for not making a finding nor giving “any indication” that the factor was “considered.”

Id. In accord with Bullock, a trial court determining the amount of a workers’

compensation subrogation lien is required, at a minimum, to take into consideration




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the cost of the third party litigation to be shared between the employee and

employer.4

       In the present case, we conclude that the trial court’s order gives sufficient

indication that the “mandatory statutory factor” regarding the cost of the third party

litigation to be shared between the employee and employer was considered. The trial

court’s order notes that: (1) the arbitration panel found that Plaintiff was entitled to

recover $285,000.00 against Defendant; (2) the court costs were $160.00; (3) Plaintiff’s

attorney’s fees as of the date of the order totaled $83,333.33 – $50,000.00 of which is

attributed to work done as part of the workers’ compensation case, and the other

$33,333.33 originating from Nationwide’s payment of $100,000.00 in the third-party

litigation; (4) Plaintiff’s attorney’s fee agreement with Plaintiff “relative to the civil

action is one third (1/3) of the amount paid on the judgment in this case, after

litigation expenses and costs are paid;” and (5) the “workers[’] compensation carrier

intend[ed] to allow [Plaintiff’s attorney] to recover his agreed upon attorney fee

and . . . exclude[d] that attorney fee from the amount of the Employer/Workers[’]

Compensation carrier’s subrogation lien.”




       4  In its brief, GEICO contends a plain reading of N.C.G.S. § 97-10.2(j) shows there is no such
requirement, and urges this Court to disregard cases which hold to the contrary. Of course, “[w]e have
no authority to overrule this Court’s prior decision” in Bullock. Wells v. Cumberland Cty. Hosp. Sys.,
Inc., 181 N.C. App. 590, 593, 640 S.E.2d 400, 403 (2007); see also In the Matter of Appeal from Civil
Penalty, 324 N.C. at 384, 379 S.E.2d at 37. We therefore decline GEICO’s invitation to do so.

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      In its order, the trial court considered the amount Plaintiff and his attorney

had received, and would receive in the future, as a result of the third party litigation;

took into account the court costs that had been paid; and noted that Neuwirth and

Brentwood intended to exclude Plaintiff’s attorney’s fees from the amount of the

workers’ compensation subrogation lien. Taken together, these findings of fact are

sufficient to show that the trial court considered “the amount of cost of the third-party

litigation to be shared between the employee and employer.” N.C.G.S. § 97-10.2(j); see

also Bullock, 188 N.C. App. at 526, 655 S.E.2d at 874.

                                    III. Conclusion

      For the reasons stated, Foremost had standing to apply for a determination of

the subrogation amount, and the trial court possessed subject matter jurisdiction to

determine the amount. The trial court’s 4 June 2015 order determining the amount

of Neuwirth’s and Brentwood’s workers’ compensation subrogation lien is affirmed.

      AFFIRMED.

      Judges HUNTER JR. and DILLON concur.




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