Subrogation to rights of employee or dependents against third person, effect of recovery
When a worker gets hurt on the job and someone else (not the employer) is also at fault, the employer has the right to get back some of the workers' comp money it paid out. If the worker or their family sues that other person and wins money, the employer gets a share of that money. The costs of the lawsuit and lawyer fees get split fairly before anyone gets paid. If the worker's own fault played a role in the injury, that affects how the money is split up. Also, an employer cannot sue to get that money back if the worker got sick from toxic chemicals at work.
287.150. to rights of employee or against third person, effect of recovery — , , when, — of subrogation rights on certain contracts , employer's on subrogation recovery, when — , subrogation, effect on. — 1. Where a third person is to the employee or to the dependents, for the injury or death, the employer shall be to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover. Any recovery by the employer against such third person shall be between the employer and employee or his dependents using the of s 2 and 3 of this section.
2. When a third person is liable for the death of an employee and compensation is paid or payable under this chapter, and recovery is had by a under this chapter either by or settlement for the of the employee, the employer shall have a on any recovery and shall receive or have for sums paid or payable under this chapter to any of the dependents of the deceased employee to the extent of the settlement or recovery by such dependents for the wrongful death. Recovery by the employer and credit for future shall be computed using the provisions of subsection 3 of this section relating to of the employee.
3. Whenever recovery against the third person is by the employee or his dependents, the employer shall pay from his share of the recovery a share of the expenses of the recovery, including a reasonable attorney fee. After the expenses and attorney fee have been paid, the balance of the recovery shall be apportioned between the employer and the employee or his dependents in the same ratio that the amount due the employer bears to the total amount recovered if there is no finding of comparative fault on the part of the employee, or the total determined by the if there is a finding of comparative fault on the part of the employee. the foregoing , the balance of the recovery may be divided between the employer and the employee or his dependents as they may otherwise agree. Any part of the recovery found to be due to the employer, the employee or his dependents shall be paid and any part of the recovery paid to the employee or his dependents under this section shall be treated by them as an advance payment by the employer on account of any future installments of compensation in the following manner:
(1) The total amount paid to the employee or his dependents shall be treated as an advance payment if there is no finding of comparative fault on the part of the employee; or
(2) A percentage of the amount paid to the employee or his dependents equal to the percentage of assessed to the third person from whom recovery is made shall be treated as an advance payment if there is a finding of comparative fault on the part of the employee.
4. In any case in which an injured employee has been paid benefits from the as provided in subsection 3 of section 287.141, and recovery is had against the third party liable to the employee for the injury, the second injury fund shall be subrogated to the rights of the employee against said third party to the extent of the payments made to him from such , subject to provisions of subsections 2 and 3 of this section.
5. No construction design professional who is retained to perform professional s on a construction project or any employee of a construction design professional who is assisting or representing the construction design professional in the performance of professional services on the site of the construction project shall be liable for any injury resulting from the employer's failure to comply with safety standards on a construction project for which compensation is recoverable under the law, unless responsibility for safety practices is specifically assumed by contract. The provided by this subsection to any construction design professional shall not apply to the preparation of design plans or .
6. Any provision in any contract or subcontract, where one is an employer in the , which to subrogation rights provided under this section in anticipation of a future injury or death is hereby declared and void. Each contract of insurance for workers' compensation shall require the to diligently pursue all subrogation rights of the employer and shall require the employer to fully cooperate with the insurer in pursuing such recoveries, except that the employer may enter into compromise agreements with an insurer the insurer pursuing subrogation against another party. The amount of any subrogation recovery by an insurer shall be credited against the amount of the actual paid losses in the of such employer's within forty-five days of the collection of such amount.
7. Notwithstanding any other provision of this section, when a third person or party is liable to the employee, to the dependents of an employee, or to any person eligible to sue for the employee's* wrongful death as provided is section 537.080 in a case where the employee or suffered from an due to and the employee, dependents, or persons eligible to sue for wrongful death are compensated under this chapter, in no case shall the employer then be subrogated to the rights of an employee, dependents, or persons eligible to sue for wrongful death against such third person or party when the occupational disease due to toxic exposure arose from the employee's work for employer.
(RSMo 1939 § 3699, A.L. 1955 p. 597, A.L. 1957 p. 560, A.L. 1990 S.B. 751, A.L. 1993 S.B. 251, A.L. 2005 S.B. 1 & 130, A.L. 2013 S.B. 1)
Prior revision: 1929 § 3309
Effective 1-01-14
*Word "employer's" appears in original rolls, a typographical error.
(1962) Employers and their workmen's compensation insurer could not recover, on theory of subrogation, amount of compensation paid injured employee from third party and his liability insurer who had settled with employee for amount in excess of compensation paid. O'Hanlon Reports, Inc. v. Needles (A.), 360 S.W.2d 382.
(1965) In an to workmen's compensation for 's employer to pay to plaintiff one-half of the trial expenses incurred by plaintiff in the trial of plaintiff's action instituted against a third party, held this section does not provide for the sharing of expenses in the event the third party action is unsuccessful and there is no basis in workmen's compensation act for plaintiff's action. Veninga v. Liberty Mutual Insurance Co. (A.), 388 S.W.2d 535.
(1965) Employer and workmen's compensation insurer had right to under this section in employee's action for injuries suffered while acting within scope of , notwithstanding possible prejudice of injection of insurance into trial. State v. Luten (A.), 390 S.W.2d 931.
(1967) The second injury fund is subrogated to the rights of the employee and entitled to credit on the awards of a portion of the recovery by the employee from the third party. Cole v. Morris (Mo.), 409 S.W.2d 668.
(1967) The employer's right against the third party tort-feasor is wholly derivative, is conditional upon the existence of a in the injured employee against the tort-feasor, and as the employer has no separate cause of action for the subrogation , a judgment against the employee would defeat any claimed right of subrogation. State v. Holt (A.), 411 S.W.2d 249.
(1967) Where widow cooperated and testified in action brought by compensation carrier against third party, widow had not "effected" recovery within statutory provision. Maryland Casualty Co. v. General Electric Co. (Mo.), 418 S.W.2d 115.
(1968) The is not of the , but is wholly substitutional, and if the accident is not covered by the compensation law, the common law action remains unaffected. Wilson v. Hungate (Mo.), 434 S.W.2d 580.
(1973) Formula for of of suit against third party instituted by workmen's compensation established by court. Ruediger v. Kollmeyer Brothers Service (Mo.), 501 S.W.2d 56.
(1998) Case management group retained by employer for the purpose of directing and monitoring treatment of employer's injured employees was not a third person against whom separate tort may be brought because group's alleged acts were performed for the purpose of discharging employer's duty to provide treatment to employer's injured employees. Burns v. Employer Health Services, Inc., 976 S.W.2d 639 (W.D.Mo.).
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