Townley's Dairy Co. v. Tipps

Townley's Dairy Co. v. Tipps
1980 OK 181
621 P.2d 1154
Case Number: 54826
Decided: 11/25/1980
Supreme Court of Oklahoma

TOWNLEY'S DAIRY COMPANY, PETITIONER,
v.
RAE E. TIPPS, MICHAEL S. TIPPS, KEVIN J. TIPPS, KELLI D. TIPPS, TERRI ANN ASH, GARY W. TIPPS, AND RICKY L. TIPPS, AND WORKERS' COMPENSATION COURT, RESPONDENTS.

¶0 Original proceeding brought by employer to review order on appeal entered by Workers'Compensation Court en banc, affirming trial judge's order awarding death benefits andholding that failure of claimants to make an election under 85 O.S.Supp. 1979 § 44 , as to whether to pursue third-party action is not a bar to award of death benefits; Charles Cashion, Trial Judge.

ORDER SUSTAINED.

Gene C. Howard, R.K. Pezold, Howard & Rapp, Tulsa, for petitioner.
Patrick E. Moore, Moore/Foster, Attys., Oklahoma City, for respondents.

WILLIAMS, Justice:

¶1 The question presented is whether or not 85 O.S.Supp. 1979 § 44 (a) and (b) require death benefit claimants to make an election of remedies with the employer having the right of subrogation.

¶2 During the pendency of this action, the foregoing question was fully determined in Earnest, Inc. and United General Insurance Company v. LeGrand and the Workers' Compensation Court, 621 P.2d 1148 (Okl. 1980), decided this date against the employer and insurance carrier. The holding in that case is adopted as the holding herein, and the order on appeal affirming the trial judge's order is sustained.

¶3 LAVENDER, C.J., IRWIN, V.C.J., and HODGES, SIMMS, DOOLIN and HARGRAVE, JJ., concur.

¶4 OPALA, J., concurs in result.

¶5 BARNES, J., dissents.