Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
Plaintiff, Patrick McDermott, received workmen's compensation benefits from the defendant, Standard Accident Insurance Company, his employer's insurance carrier. Subsequently he obtained a settlement for his injuries in a law action brought against certain third persons. The full amount of the compensation was then repaid to defendant under N.J.S.A. 34:15-40. Later, Standard refused to recognize the counsel fee allowance provided for by subsection (e) of the statute. Recovery thereof was sought in the Law Division but the suit was dismissed on defendant's motion at the close of the plaintiff's proof. The legal propriety of that determination is the subject of this appeal.
The record discloses that on May 26, 1950 McDermott was injured during the course of his employment with Oklahoma Contracting Co. Thereafter, Standard Accident Insurance Company, the employer's insurance carrier, paid medical and disability benefits totalling $11,043.89 and established its lien in that amount.
McDermott brought a third-party action against Transcontinental Pipe Line Co., Fish Constructors, International
Excavation Co. and Peter Kero, Inc., charging that his injuries resulted from their negligent conduct. His counsel was engaged under a contingency retainer of 33 1/3% of any recovery. By reason of indemnity or save harmless agreements in favor of certain of the defendants, McDermott's employer, Oklahoma Contracting Co., was drawn into the litigation by third-party complaint. Since Standard had the liability as well as the workmen's compensation coverage for Oklahoma, it was forced to appear in the negligence suit also.
On November 21, 1951 a settlement was effected in the sum of $52,000. Participation of the various parties by their insurance companies was as follows:
Continental Casualty Co. for
Transcontinental Gas Pipe Lines $32,000
Oklahoma Contracting Co. 10,000
International Excavation Co. 2,500
Massachusetts Bonding Co. for