Third parties; actions to recover damages; subrogation; limitation
of actions
Sec. 36. (a) Whenever disablement or death from an occupational
disease arising out of and in the course of the employment for which
compensation is payable under this chapter, 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 the employee's
dependents, in case of death, may commence legal proceedings
against such other person to recover damages notwithstanding such
employer's or such employer's occupational disease insurance
carrier's payment of, or liability to pay, compensation under this
chapter. In such case, however, if the action against such other
person is brought by the injured employee or the employee's
dependents and judgment is obtained and paid and accepted and
settlement is made with such other person, either with or without
suit, then from the amount received by such employee or dependents
there shall be paid to the employer, or such employer's occupational
disease insurance carrier, the amount of compensation paid to such
employee or dependents, plus the medical, hospital and nurses'
services and supplies and burial expense paid by the employer or
such employer's occupational disease insurance carrier, and the
liability of the employer or such employer's occupational disease
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.
(b) In the event such employee or the employee's dependents, not
having received compensation or medical, surgical, hospital, or
nurse's services and supplies or death benefits, or such employer's
occupational disease insurance carrier, shall procure a judgment
against such other party for disablement or death from an
occupational disease arising out of and in the course of the
employment, which judgment is paid, or if settlement is made with
such other person, either with or without suit, then the employer or
such employer's occupational disease insurance carrier shall have no
liability for payment of compensation or for payment of medical,
surgical, hospital, or nurse's 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.
(c) In the event an employee, or in the event of the employee's
death, the employee's dependents, shall procure a final judgment
against such other person other than by agreement, for disablement
or death from an occupational disease arising out of and in the course
of the employment and such judgment is for a lesser sum than the
amount for which the employer or such employer's occupational
disease insurance carrier is liable for compensation and for medical,
surgical, hospital, and nurse's services and supplies, as of the date the
judgment becomes final, then the employee, or in the event of the
employee's death, the employee's dependents, shall have the option
of either collecting such judgment and repaying the employer or such
employer's occupational disease insurance carrier for compensation
previously drawn, if any, and repaying the employer or such
employer's occupational disease insurance carrier for medical,
surgical, hospital, and nurse's services and supplies previously paid,
if any, and of repaying the employer or such employer's occupational
disease insurance carrier, the burial benefits paid, if any, or of
assigning all rights under said judgment to the employer or such
employer's occupational disease insurance carrier and thereafter
receiving all compensation and medical, surgical, hospital, and
nurse's services and supplies to which the employee, or in the event
of the employee's death, to which the employee's dependents would
be entitled if there had been no action brought against such other
party.
(d) If the employee or the employee's dependents agree to receive
compensation, because of an occupational disease arising out of and
in the course of the employment, from the employer or such
employer's occupational disease insurance carrier, or to accept from
the employer or such employer's occupational disease insurance
carrier by loan or otherwise, any payment on account of such
compensation or institute proceedings to recover the same, the said
employer or such employer's occupational disease insurance carrier
shall have a lien upon any settlement award, judgment, or fund out
of which such employee might be compensated from the third party.
(e) The employee, or in the event of the employee's death, the
employee's dependents, shall institute legal proceedings against such
other person for damages within two (2) years after said cause of
action accrues. If, after said proceeding is commenced, the same is
dismissed, the employer or such employer's occupational disease
insurance carrier, having paid compensation or having become liable
therefor, may collect in their own name or in the name of the
disabled employee, or in the case of death, in the name of the
employee's dependents, from the other person in whom legal liability
for damages exists, the compensation paid or payable to the disabled
employee or the employee's dependents, plus such medical, surgical,
hospital, and nurse's services and supplies and burial expense paid by
the employer or such employer's occupational disease insurance
carrier for which they have become liable. The employer or such
employer's occupational disease insurance carrier may commence
such action at law for such collection against the other person in
whom legal liability for damages exists, not later than one (1) year
from the date said action so commenced, has been dismissed,
notwithstanding the provisions of any statute of limitations to the
contrary.
(f) If said employee, or in the event of the employee's death, the
employee's dependents, shall fail to institute legal proceedings,
against such other person for damages within two (2) years after said
cause of action accrues, the employer or such employer's
occupational disease insurance carrier, having paid compensation or
having been liable therefor, may collect in their own name or in the
name of the disabled employee, or in the case of the employee's
death, in the name of the employee's dependents, from the other
person in whom legal liability for damage exists, the compensation
paid or payable to the disabled employee or to the employee's
dependents, plus the medical, surgical, hospital, and nurse's services
and supplies and burial expenses, paid by them or for which they
have become liable, and the employer or such employer's
occupational disease insurance carrier may commence such action at
law for such collection against such 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 said action accrued to said
disabled employee or, in the event of the employee's death, to the
employee's dependents, notwithstanding the provisions of any statute
of limitations to the contrary.
(g) In such actions brought as provided in this section by the
employee or the employee's dependents, the employee or the
employee's dependents shall, within thirty (30) days after such action
is filed, notify the employer or such employer's occupational disease
insurance carrier, by personal service or registered or certified mail,
of such fact and the name of the court in which suit is brought, filing
proof thereof in such action.
(h) If the employer does not join in the action within ninety (90)
days after receipt of the notice, then out of any actual money
reimbursement received by the employer or such employer's
occupational disease insurance carrier pursuant to this section, they
shall pay their pro rata share of all costs and reasonably necessary
expenses in connection with such third party claim, action, or suit,
and to the attorney at law selected by the employee or the employee's
dependents, a fee of twenty-five percent (25%), if collected without
trial, of the amount of benefits after the expenses and costs in
connection with such third party claim have been deducted
therefrom, and a fee of thirty-three and one-third percent (33 1/3%),
if collected after trial, of the amount of such benefits after deduction
of the costs and reasonably necessary expenses in connection with
such third party claim, action, or suit. The employer may, within
ninety (90) days after receipt of notice of suit from the employee or
the employee's dependents, join in the action upon the employee's
motion so that all orders of court after hearing and judgment shall be
made for the employee's protection.
(i) No release or settlement of claim for damages by reason of
such injury or death, and no satisfaction of judgment in such
proceedings shall be valid without the written consent of both
employer or such employer's occupational disease insurance carrier,
and employee, or the employee's dependents. However, in the case
of the employer or such employer's occupational disease insurance
carrier, such consent shall not be required where the employer, or
such employer's occupational disease insurance carrier has been fully
indemnified or protected by court order.
(Formerly: Acts 1937, c.69, s.29; Acts 1963, c.388, s.17; Acts 1969,
c.101, s.5; Acts 1974, P.L.109, SEC.7.) As amended by P.L.28-1988,
SEC.62.
Last modified: May 27, 2006