(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 services
and products 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 services and products 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 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 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 services and products
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 services and products 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 employee with a
disability, 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 employee with a
disability, or the employee's dependents, plus such services and
products 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 employee
with a disability, 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
employee with a disability 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 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 the action accrued to the employee
with a disability 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 employer's motion so that all
orders of court after hearing and judgment shall be made for the
employer'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; P.L.99-2007, SEC.185; P.L.275-2013, SEC.18;
P.L.139-2020, SEC.7.