
    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.
    No. 54826.
    Supreme Court of Oklahoma.
    Nov. 25, 1980.
    Rehearing Denied Jan. 19, 1981.
    Gene C. Howard, R. K. Pezold, Howard & Rapp, Tulsa, for petitioner.
    Patrick E. Moore, Moore/Foster, Attys., Oklahoma City, for respondents.
   WILLIAMS, Justice:

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.

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 (Oki.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.

LAVENDER, C. J., IRWIN, V. C. J„ and HODGES, SIMMS, DOOLIN and HAR-GRAVE, JJ., concur.

OPAL A, J., concurs in result.

BARNES, J., dissents.  