Liberty Mutual Insurance Company a/s/o Catherine Lamm, Appellants
Excalibur Management Services d/b/a Excalibur Insurance Management and Luzerne County
Argued: September 11, 2013.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge.
BONNIE BRIGANCE LEADBETTER, Judge.
Liberty Mutual Insurance Company, a/s/o Catherine Lamm, appeals from an order of the Court of Common Pleas of Luzerne County that granted the preliminary objection in the nature of a demurrer of Excalibur Management Services d/b/a Excalibur Insurance Management and Luzerne County (collectively, Appellees), thereby dismissing Liberty Mutual's complaint seeking judgment against Appellees for medical benefits in the amount of $15, 912.48, together with interest and costs, that Liberty Mutual paid to Lamm pursuant to a personal automobile insurance policy. In their preliminary objection, Appellees asserted that Liberty Mutual failed to exercise or exhaust its statutory remedy under Section 319 of the Workers' Compensation Act (Act),  the subrogation provision, during the pendency of Lamm's workers' compensation claim for injuries sustained in an automobile accident that occurred during the course and scope of her employment with Employer Luzerne County. We agree with common pleas that Liberty Mutual had to establish its subrogation interest during the pendency of the workers' compensation proceedings and, accordingly, affirm.
In January 2010, Lamm was involved in a work-related automobile accident that led to her July 2010 workers' compensation claim against Employer. In March 2011, Lamm and Excalibur, Employer's workers' compensation insurer, entered into a compromise and release agreement thereby resolving her workers' compensation claim. In March 2012, Liberty Mutual filed a complaint in the Court of Common Pleas of Philadelphia County averring that it had provided first-party medical benefits to Lamm pursuant to an automobile insurance policy. Further, Liberty Mutual alleged that it had paid Lamm medical benefits pursuant to that policy as a result of Excalibur's July 15, 2010, denial of her workers' compensation claim. Accordingly, citing the primacy of workers' compensation over automobile insurance benefits, Liberty Mutual asserted that Appellees were obligated to reimburse it and alleged three theories of recovery: 1) reimbursement pursuant to Section 1719 of the Motor Vehicle Responsibility Law (MVFRL),  the coordination of benefits provision; 2) common law contribution; and 3) common law reimbursement/indemnity.
In response, Appellees filed the preliminary objection at issue pursuant to Pennsylvania Rule of Civil Procedure No. 1028(a)(7), failure to exercise or exhaust a statutory remedy. Citing Liberty Mutual's failure to take any action to secure its subrogation right or right to reimbursement during the pendency of the workers' compensation proceedings, common pleas determined that Liberty Mutual's claim failed as a matter of law and granted the preliminary objection. In so doing, the court noted that Liberty Mutual was clearly aware of the pendency of Lamm's workers' compensation claim prior to the March 2011 compromise and release as evidenced by Lamm's response on Liberty Mutual's July 7, 2010 "Statement of Claim, Financial Responsibility Benefits" form. Exhibit G to Preliminary Objections; Supplemental Reproduced Record (S.R.R.) at 76b. Liberty Mutual's timely appeal followed.
Notwithstanding Liberty Mutual's position to the contrary, Section 319 of the Act governs the present case. Specifically, the second paragraph of Section 319 provides for the subrogation rights of an insurance company that made payments for medical expenses pursuant to a non-workers' compensation program:
Where an employe has received payments for the disability or medical expense resulting from an injury in the course of his employment paid by the employer or an insurance company on the basis that the injury and disability were not compensable under this act in the event of an agreement or award for that injury the employer or insurance company who made the payments shall be subrogated out of the agreement or award to the amount so paid, if the right to subrogation is agreed to by the parties or is established at the time of the hearing before the referee or the board. [Emphasis added].
Accordingly, "the second paragraph of Section 319 contemplates subrogation established either by contract (agreed to by the parties) or by litigation (established at the time of the hearing)." Independence Blue Cross v. Workers' Comp. Appeal Bd. (Frankford Hosp.), 820 A.2d 868, 872 (Pa. Cmwlth. 2003).
In the present case, there is no dispute that the parties did not enter into a contract. Pursuant to the plain language of Section 319, therefore, Liberty Mutual was obligated to establish a right to subrogation for medical expenses at the time of the hearing before the WCJ or the Board. Indus. Recision Servs. v. Workers' Comp. Appeal Bd. (Farbo), 808 A.2d 994, 998-99 (Pa. Cmwlth. 2002); Baierl Chevrolet v. Workmen's Comp. Appeal Bd. (Schubert), 613 A.2d 132, 134 (Pa. Cmwlth. 1992). Liberty Mutual, however, did not file its complaint in common pleas court seeking reimbursement for medical benefits until March 2012, one year after Excalibur and Lamm entered into a March 2011 compromise and release agreement in the workers' compensation arena. Accordingly, not only did Liberty Mutual seek reimbursement in the wrong forum, but it waited too long to do so.
It is well established that, "subrogation under the second paragraph of Section 319 is not self-executing and must be asserted with reasonable diligence." Frankford Hosp., 820 A.2d at 872. In the present case, such reasonable diligence is noticeably absent. In that regard, Liberty Mutual acknowledged in its complaint actual notice of both Lamm's workers' compensation claim and Excalibur's initial denial. Specifically, Liberty Mutual admitted that, at the time of Lamm's work-related accident, she was in the course and scope of her employment with Employer and the workers' compensation policy issued by Excalibur was in full force and effect. Complaint, ¶¶ 4-6. Further, Liberty Mutual averred that Lamm filed a workers' compensation claim with Appellees for injuries sustained in that accident and that Excalibur denied that claim on July 15, 2010. Id., ¶¶ 7 and 8. Finally, Liberty Mutual averred that it paid Lamm medical benefits in response to Excalibur's denial. Id., ¶ 8. Liberty Mutual, therefore, admittedly was contemporaneously aware of the workers' compensation action. Accordingly, Liberty Mutual did not exercise reasonable diligence in seeking reimbursement in any forum.
In addition, notwithstanding the fact that Liberty Mutual, as Lamm's automobile insurer, had actual notice of her workers' compensation claim, actual notice is not required. Insurance companies frequently deal with coordination of benefits. In that vein, absent some kind of fraudulent concealment, it was incumbent upon an insurer such as Liberty Mutual to exercise reasonable diligence in order to ascertain both the existence of workers' compensation proceedings and their ongoing status. See Frankford Hosp., 820 A.2d at 872. The fact that Lamm's workers' compensation claim resulted in a compromise and release is irrelevant. Such a possibility is part and parcel of such proceedings.
Notwithstanding the plain language of Section 319 of the Act and the case law interpreting it, Liberty Mutual argues that an automobile carrier's right of recovery of first-party medical benefits from a workers' compensation carrier should occur in a court of common pleas and not in a workers' compensation proceeding. To that end, Liberty Mutual maintains that common pleas erroneously treated its complaint as a subrogation action, as opposed to an action for reimbursement and/or for contribution and indemnity. Specifically, it contends that Section 1719 of the MVFRL, providing for the primacy of workers' compensation benefits, is not a subrogation statute, but rather a cost-shifting statute shifting responsibility for payment of medical benefits from the automobile insurer to the workers' compensation carrier. Even if this characterization of the MVFRL is accurate, as discussed more fully below, the nature of the action brought here was a claim for subrogation. Nonetheless, Liberty Mutual argues that common pleas should have focused on the averment that Excalibur denied Lamm's workers' compensation claim, thereby triggering her application to Liberty Mutual pursuant to her personal automobile policy. Accordingly, it argues that it was not required to seek reimbursement during the pendency of Lamm's workers' compensation proceedings. In support, it cites Kaiser v. Old Republic Insurance Co., 741 A.2d 748 (Pa. Super. 1999) and Myers v. Commercial Assurance Cos., 506 Pa. 492, 485 A.2d 1113 (1984).
In Old Republic, the Medical Professional Liability Catastrophe Loss Fund (CAT Fund),  after learning of a subsequent workers' compensation claim, filed a complaint in common pleas court seeking to recover medical bill payments that it had paid to the medical providers of an injured employee in excess of her primary automobile policy limits. At the time that it made the payments, the Fund was unaware that the employee's injury was work-related or that she subsequently had filed a workers' compensation claim. The employer's workers' compensation carrier, Old Republic, filed preliminary objections, alleging that the Fund's claims were barred by Section 303(b) of the Act,  the exclusivity provision, and Section 319 of the Act, the subrogation provision, because it failed either to properly preserve a claim by a contract with Old Republic or to raise a claim in the workers' compensation forum. The Superior Court determined that common pleas had jurisdiction, concluding that neither Section 303(b) nor Section 319 of the ...