defense, and the Romonoskis were awarded damages totalling $15,000.
Curtis now complains that Multipane's handling of the Romonoski matter unnecessarily exposed him to summary judgment in the instant case on the basis of res judicata or collateral estoppel. Curtis contends that to protect his interests -- and thus its subrogation rights -- Multipane should have withheld the joinder of Simpson, Broad, and Ford, or once having joined them, obtained a continuance until the disposition of his suit. If that could not be done, Curtis argues the Romonoski suit should have been settled.
The nub of Curtis' argument is that Multipane's duty to him transcended its privilege to defend the suit brought by the Romonoskis despite the fact that his theory and Multipane's theory on the cause of the accident were identical. In other words, this is not a case where two parties eventually interested in a common recovery were taking inconsistent positions or following different courses. Quite to the contrary: Curtis' complaint is that he might have been harmed because he and Multipane took the same view of the accident. From the dollar and cents standpoint, Curtis' claim for damages turned out to be larger than the Romonoskis'. Certainly Curtis' suit was more important to him than the Romonoski action was to Multipane. Nevertheless, it does not follow that Multipane had to surrender a bona fide defense to the claims made against it as the price of retaining the right of subrogation granted by the Workmen's Compensation statute.
Counsel for the parties and the State Trial Judge, the Honorable Bernard C. Brominski, were all aware of the existence of the instant case and the possibility of a res judicata -- collateral estoppel defense to it. Curtis' own lawyer permitted him to attend the proceedings but would not allow him to testify. Without Curtis, Multipane had no case against Ford, Simpson Chevrolet, and Broad Motors. The discontinuance of the third party action against them was specifically limited to the Romonoski suit and in granting the dismissal, Judge Brominski determined that Curtis' individual rights would not be affected. I agreed that Curtis had not had his day in court and therefore refused the motions for summary judgment filed by Ford, Simpson Chevrolet, and Broad Motors. Although this ruling could have been appealed, it goes without saying that I thought it was correct and that the Romonoski matter had been handled by counsel for Multipane with full appreciation of Curtis' rights and with every effort to protect them.
Curtis' contention that a continuance would have protected his interests by enabling the instant case to be tried first is valid -- but the possibilities were explored and the state court refused the necessary request. The case was an old one and further delay did not seem warranted to Judge Brominski. Curtis' argument that the matter could have been settled at close to the verdict figure -- and therefore should have been settled to protect his interests is without factual support. I can only speculate as to the nature of the Romonoskis' injuries, their expenses, the skill of their counsel, and the multitude of other facets which affect settlement. In no event is there a constant correlation between claim, settlement potential, and ultimate verdict -- even to those blessed with hindsight.
I can find nothing in the handling of the Romonoski suit which would justify overruling the mandate of the Pennsylvania legislature by denying subrogation rights to Multipane.
6. Workmen's Compensation Benefits.
Before trial, Bituminous completed its obligation to compensate Curtis for his permanent injuries and its payments ceased. Plaintiff now complains that this action subjected him to financial pressure to settle his case for an amount below its true value. His position is without merit. Although he contended that he was permanently disabled and unable to work, he had not filed the required petition with the Board to obtain a modification of its prior order. See 77 P.S. § 772. The failure of Bituminous to pay more than the compensation award against it does not amount to a failure to assist plaintiff in his efforts to recover damages and would not justify the striking of the subrogation lien.
Multipane's New Matter
One further matter requires decision. In the ordinary case, an employer which asserts subrogation rights to a fund obtained from a third party must pay a proportionate part of the employee's attorney fees: Long v. Marino Masse, Inc., 205 Pa. Super. 344, 208 A. 2d 920 (1965). Here, Multipane asks that plaintiff's counsel be denied his fee for obtaining the subrogated fund. Multipane argues that the filing of the petition to strike was an attempt by counsel for Curtis to circumvent the Workmen's Compensation laws and was not done in good faith. Multipane contends that it should thereby be relieved of any obligation to pay a fee on its share of the recovery. I do not agree. Although I have not found in plaintiff's favor, there is nothing to suggest that counsel for Curtis acted improperly. His primary obligation was to Curtis. He presented what he considered to be compelling reasons to set aside the subrogation lien. The fact that he did so should not exempt Multipane, or more accurately its insurance carrier, from sharing in the costs of the fund from which it will benefit. In circumstances such as this, a fee is not payable to counsel because he represents the employer with all the duties attendant in the attorney-client relationship, but because a fund has been created through his efforts from which the employer will benefit.