STATE OF MINNESOTA

IN SUPREME COURT

C1-96-412

Charles M. Zidich,

Respondent,

vs.

National Cash Register Corp., and

Hartford Insurance Group,

Respondents,

and

Concraft Builders, Inc., and Employers

Insurance of Wausau,

Respondent,

and

The Jamar Company and State

Fund Mutual Ins. Co.,

Relators.

Considered and decided by the court en banc.

O R D E R

Based upon all the files, records, and proceedings herein,

WHEREAS, The Jamar Company and its workers' compensation liability insurer, State Fund Mutual Insurance Company, have sought review of a split decision of the Workers' Compensation Court of Appeals reversing the compensation judge's allocation of liability between them and Concraft Builders and its workers' compensation liability insurer, Employers Insurance of Wausau; and

WHEREAS, even though equitable apportionment, as it has been established by judicial decision, is unaffected by Minn. Stat. § 176.101, subd. 4a, DeNardo v. Divine Redeemer Mem. Hosp., 450 N.W.2d 290 (Minn. 1990), the parties here had agreed to a determination of an allocation of liability pursuant to Minn. Stat. § 176.101, subd. 4a; and

WHEREAS, this court has determined that the compensation judge's allocation of liability had the requisite evidentiary support for reasons articulated in the dissent to the majority opinion, Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54 (Minn. 1984);

IT IS HEREBY ORDERED that the decision of the Workers' Compensation Court of Appeals, filed February 9, 1996, reversing the compensation judge's allocation of liability and order based thereon, be and the same is, reversed and the compensation judge's findings and order reinstated. This court adopts the rationale of the dissenting opinion in support of this decision.

Dated: May 24, 1996

BY THE COURT:

A.M.Keith

Chief Justice