### No. 92-305 

### IN THE SUPREME COURT OF 

### THE STATE OF MONTANA 1992



### ELAINE S. WILDIN, Claimant and Respondent,-v

### CNA INSURANCE COMPANY, Insurer and Appellant.

APPEAL FROM: The Workers' Compensation Court The Honorable Timothy Reardon, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Todd A. Hammer, Warden, Christiansen, Johnson & 

### Berg, Kalispell, Montana For Respondent: Victor 

### R. Halverson, Halverson, Sheehy & 

### Plath, Billings, Montana; James G. 

### Edmiston, Billings, Montana; L. Randall Bishop, Jarussi & 

### Bishop, Billings, Montana

submitted on Briefs: October 22, 1992 

### Decided: February 4, 1993

### Justice 

### R. C. 

### McDonough delivered the Opinion of the Court. 

### This is 

### an appeal from the WorkersqCompensation Court order affirming a Department of Labor and Industry (DOLI) hearing examiner's allocation of a 

### settlement between the Claimant and State Farm Insurance. We 

### affirm. There are two 

### issues on appeal: 1. Did 

### the DOLI have jurisdiction over this matter? 2. Did 

### the DOLI err 

### in allocating the money from the settlement between the 

### Claimant and State Farm? 

### Elaine Wildin (Claimant)was injured in a rear end collision with another 

### motor vehicle while in the course and scope of her employment. CNA 

### Insurance company (CNA) insured Claimant's 

### employer, the ~illings

### Gazette, with workers8 compensation coverage. State Farm c ire 

### and Casualty Company (State Farm) insured the driver of thevehicle which hit Claimant. CNApaid to the Claimantmedical and disabilitybenefits of over $35,000 

### after accepting liability for the payments. Shortly thereafter, Claimant filed a civil action against State Farm's insured and contacted CNA to determine if they would join the action. Claimant's attorney never received an answer regarding CNAtsparticipation in the action. In July 1989, 

### the Claimant and State Farm agreed on a 

### settlement of $15,000 

### in exchange for a full 

### release and discharge of the claims in 

### the third party action. Drafts and the release were forwarded. CNA would not agreewith the terms of settlement and took theposition that $15,000 

### was insufficient considering the overall amount of 2workers' compensation benefits already paid. Claimant then fileda "Petition for Division Order Determining Subrogation" to allocate the settlement funds. CNA responded to the petition stating that the settlement payment was inadequate. The DOLI concluded that it had jurisdiction over the allocation determination and that CNA should receive $6,666.67 and Claimant should receive $3,333.33 after a $5,000 deduction for attorney's fees. CNA appealed to the Workers' Compensation Court which affirmed the hearing examiner. CNA now appeals to the Montana Supreme Court. Our standard of review as to findings of fact, made by the Workers' Compensation Court, is whether they are supported by substantial evidence. McIntyrev. Glen Lake Irr. Dist. (1991), 249 Mont. 63, 67, 813 P.2d 451, 454. "[O]ur standard of review relating to conclusions of law,whether the conclusionsare made by

an agency,workers' compensation court,or trial court, iswhether the tribunal's interpretation of the law is correct." Steer Inc.

v. Dept. of Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601, 603. The first question on appeal is whether the DOLI had jurisdiction to allocate the funds from the settlement between the Claimant and State Farm. The jurisdiction question actuallyhinges upon whether State Farm and the Claimant had actually settled the claim andwhether the Claimant could settle the claimwithout CNA1s consent. Section 39-71-412, MCA, provides that: 

# ".

. . the employee

# .. . shall, in additionto the right to receive compensation under this chapter,have a right to prosecute any cause of actionhe may have for damages against such persons or corporations." The statute provides that the right to bring a cause of action against the third party belongs to the claimant alone. There is no provision which mandates the insurer's consent before the action

can be brought. The "[f]unction of the Supreme Court when construing a statute is simply to ascertain and declarewhat is in substance stated therein, and not to insert what has been omitted

or to omit what has been inserted." 

### Mont. Dept. of Rev. v. Am. 

### Smelting & 

### Refining (1977), 173 

### Mont. 316, 324, 567 

### P.2d 901, 905- 906. 

### Here, CNA 

### would have us insert language to provide that the insurer also controls the handling of the action. The right to bring an action would be meaningless without the right to also dispose of the action through settlement or other means. Moreover,5 39-71-414,

### MCA,provides for the insurer's role in the action. It provides that the insurer is entitled to subrogation for compensation and benefits paid. If the claimant brings anactionagainst the thirdparty, claimant is to inform the insurer, who may 

### decide to participate in the action. It also states that the insurermay bring an action itself if the claimant does not bring an action within a year of the date of the injury and that the insurermay enter its own settlement for subrogation, The statute provides for no more than these rights. The insured may settle an action without the consent of the insurer. If the legislature wanted the insurer to exercise such control over theinsured, they would have so stated. The question of whether the Claimant and State Farm had settled their claim before the Claimant petitioned the DOLI to allocate the proceeds of the settlement is answered in the affirmative. Subsection (5) of 5 39-71-414, MCA, states that: "[ilf the amount of compensation and other benefits payable have not been fully determined at the time the employee, 

# . . . have settled in anv manner the action as provided for in this section, the division shall determine what proportion of the settlement shallbe allocated under subrogation.

# . .." (Emphasisadded.) In this case,theClaimantand thirdparty (StateFarm) fulfilledthis requirement before the Claimant petitioned for the allocation of the settlement funds. Claimant'sattorney informedtheCNA Claims Adjuster in charge of Claimant's workers' compensation case, that he had received a settlement draft for $15,000. CNA took the position that $15,000

was inadequate compensation considering the payments and benefits already paid. The Claimant thereafter filed a petition with the DOLI Workers' Compensation Division for an allocation of the settlement funds. As far as the Claimant and State Farm were concerned, there

was total agreement on the third party settlement. This is sufficient to meet the 5 39-71-414(5), MCA, requirement that the action be "settled in any manneru before the DOLI could allocate the settlement funds. CNA argues that the case should not havebeen settled becausethe Claimanthad not arrived atmaximum healing before she settled her claim with State Farm. There is no provision in 5 39-71-414, MCA, which mandates that a third party action cannot be settled until the claimant reaches maximum healing. Subsection (5) of 39-71-414, MCA, contemplates that compensation and other benefitsmay not be completely decided when the claim is settled and the Division is asked to allocate the funds. Subsection (5) statesthat "Jilf the amount of compensation and other benefits payable under theWorkers' CompensationActhave not been fullv determined at the time the emolovee,

## ... have settled in anvmanner the action

# . .. , the division shall determinewhat proportion of the settlement shall be allocatedunder subrogation."

(Emphasisadded.) This Court stated in First Interstate Bank v. Tom Sherry Tire (1988), 235 Mont. 48, 52, 764 P.2d 1287, 1289, that "where the settlement of a third-party action precedes full determination of the workers' compensation claim, the Division is the proper forum for resolving the issue of the proper amount of subrogation allocated to the insurer." Maximum healing does not have to occur before a claimant can settle her claim. Finally, CNA argues that the hearing examiner and the lower court ignored principles of equity and fairness in their disposition of this case. However, this Court has stated that "[ilt has always been our rule that it is theprovince of courts to construe and apply the law as they find it and to maintain its integrity as it has been written by a coordinate branch of thestate government. When the terms of the statute are plain, unambiguous, direct and certain, it speaks for itself and there is

no room for construction." Bay 

### v. State, Dept. of Admin. (1984), 212 Mont. 258, 265, 688 P.2d 1, 4. AFFIRMED. 

# @c-&A&~/ JusticeFebruary4, 1993 CERTIFICATEOFSERVICE Ihereby certify that the followingorderwassentbyUnited Statesmail,prepaid, tothefollowing named:

ToddA.Hammer WARDEN, CHRISTIANSEN, JOHNSON&BERG P.O. Box3038 Kalispell,MT 59903-3038 L.Randall Bishop Attorney at Law P.O. Box3353 Billings,MT59103-3353 JamesG.Edmiston AttorneyatLaw P.O. Box7187 Billings,MT 59104-7187 VictorR.Halverson Halverson, Sheehy,and Plath P. 0.Box 1817 Billings,MT 59103-1817

EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA