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In re Biddix6/20/2000
Wal-Mart presented no evidence in support of those contentions to the trial court during the hearing. Thus, such issues are not preserved for appellate review and we will not address them. N.C.R. App. P. 10(b)(1); See State v. Fayetteville St. Christian School, 299 N.C. 351, 359, 261 S.E.2d 908, 914 (1980) (court will pass upon the constitutionality of a statute only when the issue is squarely presented upon an adequate factual basis); U.S. Fidelity and Guaranty Co. v. Johnson, 128 N.C. App. 520, 523, 495 S.E.2d 388, 390 (1998) (record must affirmatively show constitutional issue was raised and passed upon by trial court).
Wal-Mart argues that it was free from culpability with respect to the accident in which Biddix was injured and is therefore entitled to a lien on the settlement proceeds in order to recoup the payments which it made to Biddix. The employer's negligence, however, becomes relevant only when the third party tortfeasor, in the course of litigation with the injured employee, asserts that the employer's negligence joined or concurred with the negligence of the third party in causing the injury. N.C. Gen. Stat. § 97-10.2(e) (1998). See Wiggins v. Bushranger Fence Co., 126 N.C. App. 74, 483 S.E.2d 450, disc. review denied, 346 N.C. 556, 488 S.E.2d 825 (1997) (employer's negligence is irrelevant to the question of whether the trial court abused its discretion under G.S. § 97-10.2(j)).
The remaining issues are whether the superior court has the authority to order that Wal-Mart will have no lien upon the proceeds of Biddix's settlement with the third party tort-feasor, and whether, in this case, it abused its discretion by doing so. G.S. § 97-10.2(j) grants the superior court authority, in certain instances, to determine the amount of the employer's subrogation lien in funds obtained by an injured employee, who has been paid workers' compensation benefits for the injury, from a third party tortfeasor. As applicable here, the statute provides:
Notwithstanding any other subsection in this section, in the event that a judgment is obtained which is insufficient to compensate the subrogation claim of the Workers' Compensation Insurance Carrier, or in the event that 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, . . . (emphasis added).
he judge shall determine, in his discretion, the amount, if any, of the employer's lien and the amount of cost of the third-party litigation to be shared between the employee and employer . . . (emphasis added).
In this case, the event which triggers the authority of the superior court to allocate the amount of the lien or distribute funds is the settlement, and there is no requirement that the settlement amount be insufficient to compensate the workers' compensation insurance carrier, as is the case when
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