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In re Biddix6/20/2000
pported." Id. at 497, 397 S.E.2d at 334.
In United States Fidelity and Guarantee Company v. Johnson, 128 N.C. App. 520, 495 S.E.2d 388, an employee died in an automobile accident which occurred when he was driving his own automobile on business for the Department of Transportation. His widow received a settlement of $372,825 from the insurance company of the driver who struck her husband; she then petitioned the superior court to disburse these proceeds pursuant to G.S. ยง 97-10.2(j). After finding the employee's age, his earnings, the extent of his family, and the extent of his estate, the superior court concluded that "fair compensation for the injuries and damages received by . . . Executrix far exceed all forms of assets available to compensate her including both liability coverage by [third party's insurance carrier] and workers' compensation benefits," and "to allow the Department of Transportation to recover the workers' compensation lien for funds paid to or to be paid in this particular case would be inequitable under the particular facts and circumstances of this case." Id. at 522, 495 S.E.2d at 390.
Similarly, in the present case, the superior court made findings with respect to the extent of Biddix's injuries, her ongoing pain and suffering, her medical expenses as paid by Wal-Mart, her compensation for temporary disability, and the amount of the settlement and the fact that the third party tortfeasor had no additional assets from which she could recover. Based on those facts, the court concluded that the amount of the settlement inadequately compensated plaintiff for her injuries, and we cannot say the conclusion is unreasonable. Thus, a reasoned choice would exist to either reduce the lien by some amount or in its entirety. The superior court's determination that the lien be reduced in its entirety was factually supported and a proper, constitutional exercise of its discretion. The order is
Affirmed.
Judges WYNN and SMITH concur.
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