Section 281-A:13 Liability of Third Person.
I. (a) An injured employee, in addition to the benefits of this chapter, may obtain damages or benefits from or proceed at law or otherwise against another person to recover damages or benefits if:
(1) An injury for which compensation is payable under the provisions of this chapter has been sustained; and
(2) The circumstances of the injury create in another person a legal liability to pay damages in respect thereto, or a contractual obligation to pay benefits under the uninsured motorist provision of any motor vehicle insurance policy; and
(3) The action has not been barred under RSA 281-A:8.
(b) The employer, or the employer's insurance carrier, shall have a lien on the amount of damages or benefits recovered by the employee, less the expenses and costs of action, to the extent of the compensation, medical, hospital, or other remedial care already paid or agreed or awarded to be paid by the employer, or the employer's insurance carrier, under this chapter, less the employer's or the employer's insurance carrier's pro rata share of expenses and costs of action as determined in paragraph IV.
II. (a) The administrator of an employee's estate may, in addition to damages or benefits obtained under this section payable to the employee's dependents, obtain damages or benefits from or proceed at law or otherwise against another person to recover damages or benefits if:
(1) The death of the employee has resulted under circumstances creating in another person a legal liability to pay damages in respect thereto, or a contractual obligation to pay benefits under the uninsured motorist provisions of any motor vehicle insurance policy;
(2) The action has not been barred under RSA 281-A:8; and
(3) Damages or benefits obtained under this section shall be in addition to the benefits of this chapter payable to the employee's dependents.
(b) The employer, or the employer's insurance carrier, shall have a lien on the amount of damages or benefits recovered which remain after deduction of such of the expenses itemized in RSA 556:14 as are not paid by the employer or the employer's insurance carrier, and after deduction of the distributive share of any person to whom nothing is payable under RSA 281-A:26, to the extent of the compensation, medical, hospital, or other remedial care and funeral expenses already paid or agreed or awarded to be paid by the employer, or the employer's insurance carrier, under this chapter.
III. (a) No settlement by an employee or, in case of death, by the administrator of the employee's estate, of the employee's or said administrator's claim for damages or benefits at law or otherwise against such third person shall be binding until approved by the commissioner or, if an action has been brought, by the court or arbitration proceeding in which such action is pending or to which the writ is returnable. The commissioner or the court or the arbitrator, as the case may be, shall make provisions for payment to the employer or the employer's insurance carrier of the amount of the lien after expenses and costs of action have been paid.
(b) (1) In any case in which the employee or, in case of death, the administrator of the employee's estate neglects to exercise the employee's right of action by failing to proceed at law or otherwise against such third person for a period of 9 months after the injury, the employer or the employer's insurance carrier may so proceed and shall be subrogated to the rights of the injured employee or, in case of death, to the rights of the administrator to recover against such third person.
(2) If the employer or the employer's insurance carrier recovers from such other person damages or benefits, after expenses and costs of action have been paid, in excess of the amount of the lien as defined in this section, then any such excess shall be paid to the injured employee or, in case of death, to the administrator of the employee's estate for distribution in accordance with the provisions of RSA 556:14.
(c) The procedure for approval of a settlement and for safeguarding the rights of the employee or, in case of death, the rights of the administrator of the employee's estate in such cases shall be the same as is provided for protecting the rights of the employer or the employer's insurance carrier in case of a settlement made or an action at law or otherwise brought by the employee or the administrator of the employee's estate under this section.
IV. Whenever there is a recovery against a third person under paragraph I, II, or III, the commissioner, the arbitrator, or the superior court, as the case may be, shall order such division of expenses and costs of action, including attorneys' fees, between the employer or the employer's insurance carrier and the employee as justice may require.
V. Whenever the lien created by paragraph I, II, or III is in the state of New Hampshire by virtue of benefits paid to or on behalf of a state employee, the governor and council, upon petition by the injured employee, may, in their discretion, waive all or part of the lien.
VI. Any provision in any agreement which requires employers or the employer's insurance carrier to waive any rights of subrogation granted pursuant to this chapter is hereby prohibited.
Source. 1988, 194:2, eff. July 1, 1989. 2004, 3:1, eff. March 5, 2004.