JOHN R. FARRELL'S (dependent's) CASE.

WHITTEMORE, J. The facts, agreed to before the Industrial Accident Board, were as follows: The employee on July 2, 1958, sustained injuries arising out of and in the course of his employment when struck while on the public way by an automobile owned and operated by William E. Malinowski. The injuries resulted in his death on July 3, 1958. The employee was survived by his widow, Margaret, and a dependent son, born October 12, 1940. The Hartford Accident and Indemnity Company (Hartford) was the carrier of both the workmen's compensation insurance of the employer of Farrell and the automobile liability insurance of Malinowski with a limit of coverage of $20,000 for the injury or death of one person in one accident. Margaret claimed compensation under G. L. c. 152 for herself as dependent widow and for a dependent son. See Section 32, as amended through St. 1950, c. 738, Section 4. Under agreements on file Hartford, as the compensation insurer, has paid the required dependency compensation but now seeks an offset.

Hartford, as the compensation insurer, did not bring an action against the third party, Malinowski, within nine months. Margaret, as executrix, brought such action and the jury in the Superior Court returned a verdict of $25,735 on count 1 (conscious suffering) and $13,780 on count 2 (death). The executrix, before entry of judgment, agreed to accept $20,000 in full payment for damages and to release Malinowski from all further liability. Hartford, as the liability insurer, agreed to pay, and has paid, the entire amount of its coverage ($20,000) and, as the compensation insurer, agreed to waive recovery of all payments made by it under G. L. c. 152 prior to March 11, 1960, the date of execution of the stipulation and agreement for entry of judgment.

The single member in his findings ruled that the action taken by Margaret as executrix "resulting in entry of judgment of $20,000 which has been paid by . . . Hartford . . . does not in any way affect or relieve [the] obligation of the workmen's compensation insurer . . . to pay . . . [the] dependent widow benefits under . . . [G. L. c. 152, Section 31,

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as amended through St. 1956, c. 588]." His findings in accordance with the stipulation, and his order that the insurer continue the payment of dependency compensation to the claimant widow, were affirmed by the reviewing board.

This is the insurer's appeal from the decree entered in the Superior Court that the dependency payments be made in accordance with the board's decision subject to the provisions of the workmen's compensation act.

There was no error.

We assume, but need not decide, that under G. L. c. 152, Section 15, as amended through St. 1943, c. 432, [Note 1] the insurer is entitled to full reimbursement from the proceeds of the law action against the third party before the claimant may receive any thereof. The rights of the insurer, however, are affected by the stipulation under which the settlement was made. This provided: "Whereas the executrix has agreed to accept twenty thousand dollars in full payment for damages and to release the defendant from all further liability [emphasis supplied]; . . . Hartford . . . will pay to the executrix the sum of twenty thousand dollars, of which thirteen thousand seven hundred eighty dollars is for the death, and six thousand two hundred twenty is for conscious suffering; . . . Hartford . . . agrees to waive recovery of all payments made to date under c. 152 of the General Laws . . .."

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Section 15 expressly provides that the hearing on the merits of the settlement is a time for determination of "the amount, if any, to which the insurer is entitled out of such settlement by way of reimbursement . . .." The settlement stipulation is to be construed in the light of this provision.

Hartford obtained a reduction in the verdicts against its third party insured and this was not necessarily insignificant to Hartford even though the policy was limited to the amount paid. In any event, the executrix gave up her rights against the defendant. The stipulation specified that the executrix was accepting "twenty thousand dollars in full payment for damages."

In these circumstances we think that by the stipulation Hartford agreed that Margaret would have the $20,000 as executrix and not subject to offset against future compensation payments.

The final decree is affirmed and costs and reasonable expenses under G. L. c. 152, Section 11A, as amended through St. 1957, c. 693, Section 3, shall be allowed by the single justice.

So ordered.