Appeal, No. 57, Oct. T., 1960, from order of Court of Common Pleas of Northampton County, June T., 1959, No. 125, in case of Robert Stark v. Posh Construction Company et al. Judgment, directed to be entered, affirmed.
David B. Skillman, with him Frank R. Ambler, for appellant.
A. Albert Gross, with him Gross & Herster, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 192 Pa. Super. Page 411]
The injured person involved in this matter has been paid. The question is whether the workmen's compensation insurance carrier for his employer is to bear a part of the payment or whether it is to be borne solely by the liability insurance carrier of a third party whose negligence, along with that of the employer, caused the injury.
Robert Stark, an employe of Posh Construction Company, suffered a compensable injury when the crane on which he was working struck an electric wire. He was so seriously burned that he became totally, and presumably permanently, disabled. Through its insurance carrier, Posh entered into a compensation agreement under which Stark was paid compensation for total disability.
The claimant also brought an action in trespass against Lehigh Foundries, Inc. et al., to recover damages for his injuries, and his employer was brought into that case as an additional defendant by Lehigh. The final judgment in that case was against Lehigh Foundries, Inc. and Posh Construction Company in the amount of $111,123.42. (See Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123 (1957)).
Between the time of the accident and the affirmance by the Supreme Court of the judgment in the trespass action, Posh, through its insurance carrier, had paid Stark $7,518.65 under the workmen's compensation agreement.*fn1 Lehigh, through its carrier, then paid
[ 192 Pa. Super. Page 412]
Stark $103,604.77, or the difference between the judgment and the sum paid for workmen's compensation, and took an assignment of the judgment.
Posh, through its carrier, then moved the Workmen's Compensation Board to terminate the compensation agreement on the ground that the claimant's recovery from Lehigh precluded any further payments. Posh claims that under section 319 of the Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 671, it is subrogated to the rights of the employe against Lehigh to the extent of the compensation paid and payable by it to Stark. Although the issue here is whether Posh is relieved of all future payments of compensation, Posh suggests that it could recover from Lehigh the compensation it already paid, less reasonable attorney fees for the recovery in Stark v. Lehigh. It has made ...