Claims against third persons; subrogation; procedures
Sec. 13. Whenever an injury or death, for which compensation is
payable under chapters 2 through 6 of this article shall have been
sustained under circumstances creating in some other person than the
employer and not in the same employ a legal liability to pay damages
in respect thereto, the injured employee, or his dependents, in case
of death, may commence legal proceedings against the other person
to recover damages notwithstanding the employer's or the employer's
compensation insurance carrier's payment of or liability to pay
compensation under chapters 2 through 6 of this article. In that case,
however, if the action against the other person is brought by the
injured employee or his dependents and judgment is obtained and
paid, and accepted or settlement is made with the other person, either
with or without suit, then from the amount received by the employee
or dependents there shall be paid to the employer or the employer's
compensation insurance carrier, subject to its paying its pro-rata
share of the reasonable and necessary costs and expenses of asserting
the third party claim, the amount of compensation paid to the
employee or dependents, plus the medical, surgical, hospital and
nurses' services and supplies and burial expenses paid by the
employer or the employer's compensation insurance carrier and the
liability of the employer or the employer's compensation insurance
carrier to pay further compensation or other expenses shall thereupon
terminate, whether or not one (1) or all of the dependents are entitled
to share in the proceeds of the settlement or recovery and whether or
not one (1) or all of the dependents could have maintained the action
or claim for wrongful death.
In the event the injured employee or his dependents, not having
received compensation or medical, surgical, hospital or nurses'
services and supplies or death benefits from the employer or the
employer's compensation insurance carrier, shall procure a judgment
against the other party for injury or death, which judgment is paid,
or if settlement is made with the other person either with or without
suit, then the employer or the employer's compensation insurance
carrier shall have no liability for payment of compensation or for
payment of medical, surgical, hospital or nurses' services and
supplies or death benefits whatsoever, whether or not one (1) or all
of the dependents are entitled to share in the proceeds of settlement
or recovery and whether or not one (1) or all of the dependents could
have maintained the action or claim for wrongful death.
In the event any injured employee, or in the event of his death, his
dependents, shall procure a final judgment against the other person
other than by agreement, and the judgment is for a lesser sum than
the amount for which the employer or the employer's compensation
insurance carrier is liable for compensation and for medical, surgical,
hospital and nurses' services and supplies, as of the date the judgment
becomes final, then the employee, or in the event of his death, his
dependents, shall have the option of either collecting the judgment
and repaying the employer or the employer's compensation insurance
carrier for compensation previously drawn, if any, and repaying the
employer or the employer's compensation insurance carrier for
medical, surgical, hospital and nurses' services and supplies
previously paid, if any, and of repaying the employer or the
employer's compensation insurance carrier the burial benefits paid,
if any, or of assigning all rights under the judgment to the employer
or the employer's compensation insurance carrier and thereafter
receiving all compensation and medical, surgical, hospital and
nurses' services and supplies, to which the employee or in the event
of his death, which his dependents would be entitled if there had
been no action brought against the other party.
If the injured employee or his dependents shall agree to receive
compensation from the employer or the employer's compensation
insurance carrier or to accept from the employer or the employer's
compensation insurance carrier, by loan or otherwise, any payment
on account of the compensation, or institute proceedings to recover
the same, the employer or the employer's compensation insurance
carrier shall have a lien upon any settlement award, judgment or fund
out of which the employee might be compensated from the third
party.
The employee, or in the event of his death, his dependents, shall
institute legal proceedings against the other person for damages,
within two (2) years after the cause of action accrues. If, after the
proceeding is commenced, it is dismissed, the employer or the
employer's compensation insurance carrier, having paid
compensation or having become liable therefor, may collect in their
own name, or in the name of the injured employee, or, in case of
death, in the name of his dependents, from the other person in whom
legal liability for damages exists, the compensation paid or payable
to the injured employee, or his dependents, plus medical, surgical,
hospital and nurses' services and supplies, and burial expenses paid
by the employer or the employer's compensation insurance carrier or
for which they have become liable. The employer or the employer's
compensation insurance carrier may commence an action at law for
collection against the other person in whom legal liability for
damages exists, not later than one (1) year from the date the action
so commenced has been dismissed, notwithstanding the provisions
of any statute of limitations to the contrary.
If the employee, or, in the event of his death, his dependents, shall
fail to institute legal proceedings against the other person for
damages within two (2) years after the cause of action accrues, the
employer or the employer's compensation insurance carrier, having
paid compensation, or having been liable therefor, may collect in
their own name or in the name of the injured employee, or in the case
of his death, in the name of his dependents, from the other person in
whom legal liability for damage exists, the compensation paid or
payable to the injured employee, or to his dependents, plus the
medical, surgical, hospital and nurses' services and supplies, and
burial expenses, paid by them, or for which they have become liable,
and the employer or the employer's compensation insurance carrier
may commence an action at law for collection against the other
person in whom legal liability exists, at any time within one (1) year
from the date of the expiration of the two (2) years when the action
accrued to the injured employee, or, in the event of his death, to his
dependents, notwithstanding the provisions of any statute of
limitations to the contrary.
In actions brought by the employee or his dependents, he or they
shall, within thirty (30) days after the action is filed, notify the
employer or the employer's compensation insurance carrier by
personal service or registered mail, of the action and the name of the
court in which such suit is brought, filing proof thereof in the action.
The employer or the employer's compensation insurance carrier
shall pay its pro rata share of all costs and reasonably necessary
expenses in connection with asserting the third party claim, action or
suit, including but not limited to cost of depositions and witness fees,
and to the attorney at law selected by the employee or his
dependents, a fee of twenty-five per cent (25%), if collected without
suit, of the amount of benefits actually repaid after the expenses and
costs in connection with the third party claim have been deducted
therefrom, and a fee of thirty-three and one-third per cent (33 1/3%),
if collected with suit, of the amount of benefits actually repaid after
deduction of costs and reasonably necessary expenses in connection
with the third party claim action or suit. The employer may, within
ninety (90) days after receipt of notice of suit from the employee or
his dependents, join in the action upon his motion so that all orders
of court after hearing and judgment shall be made for his protection.
An employer or his compensation insurance carrier may waive its
right to reimbursement under this section and, as a result of the
waiver, not have to pay the pro-rata share of costs and expenses.
No release or settlement of claim for damages by reason of injury
or death, and no satisfaction of judgment in the proceedings, shall be
valid without the written consent of both employer or the employer's
compensation insurance carrier and employee or his dependents,
except in the case of the employer or the employer's compensation
insurance carrier, consent shall not be required where the employer
or the employer's compensation insurance carrier has been fully
indemnified or protected by court order.
(Formerly: Acts 1929, c.172, s.13; Acts 1945, c.188, s.4; Acts 1951,
c.258, s.1; Acts 1955, c.240, s.1; Acts 1963, c.387, s.3; Acts 1969,
c.94, s.1; Acts 1974, P.L.108, SEC.5.) As amended by Acts 1977,
P.L.260, SEC.1; P.L.31-2000, SEC.1.
Last modified: May 27, 2006