(a) 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 the injured
employee's 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 the
injured employee's 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 services and products 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.
(b) In the event the injured employee or the employee's dependents,
not having received compensation or services and products 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 services and products 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 any injured employee, or in the event of the
employee's death, the employee's 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 services and products, 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 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 services and products 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 services and products, to which the employee or in
the event of the employee's death, which the employee's dependents
would be entitled if there had been no action brought against the other
party.
(d) If the injured employee or the employee's 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.
(e) The employee, or in the event of the employee's death, the
employee's 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 the employee's dependents, from the other person
in whom legal liability for damages exists, the compensation paid or
payable to the injured employee, or the employee's dependents, plus
services and products, 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.
(f) If the employee, or, in the event of the employee's death, the
employee's 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 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 injured employee, or to
the employee's dependents, plus the services and products, 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 the employee's death, to the
employee's dependents, notwithstanding the provisions of any statute
of limitations to the contrary.
(g) In actions brought by the employee or the employee's
dependents, the employee or the employee's dependents 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.
(h) 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 the employee's
dependents, a fee of twenty-five percent (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 percent (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 the
employee's dependents, join in the action upon the employer's motion
so that all orders of court after hearing and judgment shall be made for
the employer's protection. An employer or the employer's 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.
(i) 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 the employee's
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; P.L.275-2013, SEC.1;
P.L.139-2020, SEC.1.