§ 127A-110. Proceedings against third party injuring or killing guard personnel.
§127A‑110. Proceedings against third party injuring or killing guardpersonnel.
(a) The right tocompensation and other benefits under G.S. 127A‑108 shall not be affectedby the fact that the injury or death was caused under circumstances creating aliability in some person other than the State to pay damages therefor, suchperson hereinafter being referred to as the "third party." Therespective rights and interests of the guard member under this Article, and theState, if any, in respect of the common‑law cause of action against suchthird party and the damages recovered shall be as set forth in this section.
(b) The guard member orpersonal representative if guard member be dead, shall have the exclusive rightto proceed to enforce the liability of the third party by appropriateproceedings if such proceedings are instituted not later than 12 months afterthe date of injury or death, whichever is later. During said 12‑monthperiod, and at any time thereafter if summons is issued against the third partyduring said 12‑month period, the guard member or personal representativeshall have the right to settle with the third party and to give a valid andcomplete release of all claims to the third party by reason of such injury ordeath, subject to the provisions of (h) below.
(c) If settlement isnot made and summons is not issued within said 12‑month period, then allrights of the guard member, or personal representative if guard member be dead,against the third party shall pass by operation of the period fixed by thestatute of limitations applicable to such rights and if the State shall nothave settled with or instituted proceedings against the third party within suchtime, then all such rights shall revert to the guard member or personalrepresentative 60 days before the expiration of the applicable statute oflimitations.
(d) The person in whomthe right to bring such proceeding or make settlement is vested shall, duringthe continuation thereof, also have the exclusive right to make settlement withthe third party and the release of the person having the right shall fullyacquit and discharge the third party except as provided by (h) below. Aproceeding so instituted by the person having the right shall be brought in thename of the guard member or personal representative and the State shall not bea necessary or proper party thereto. If the guard member or personalrepresentative should refuse to cooperate with the State by being the partyplaintiff, then the action shall be brought in the name of the State and theguard member or personal representative shall be made a party plaintiff orparty defendant by order of court.
(e) The amount ofcompensation and other benefits paid or payable on account of such injury ordeath shall not be admissible in evidence in any proceeding against the thirdparty. If the third party defending such proceeding, by answer duly served onthe State, sufficiently alleges that actionable negligence of the State joinedand concurred with the negligence of the third party in producing the injury ordeath, then an issue shall be submitted to the jury in such case as to whetheractionable negligence of the State joined and concurred with the negligence ofthe third party in producing the injury or death. The State shall have the rightto appear, to be represented, to introduce evidence, to cross‑examineadverse witnesses, and to argue to the jury as to this issue as fully as thoughit were a party although not named or joined as a party to the proceeding. Suchissue shall be the last of the issues submitted to the jury. If the verdictshall be that actionable negligence of the State did join and concur with thatof the third party in producing the injury or death, then the court shallreduce the damages awarded by the jury against the third party by the amountwhich the State would otherwise be entitled to receive therefrom by way ofsubrogation hereunder and the entire amount recovered, after such reduction,shall belong to the guard member or personal representative free of any claim bythe State and the third party shall have no further right by way ofcontribution or otherwise against the State, except any right which may existby reason of an express contract of indemnity between the State and the thirdparty, which was entered into prior to the injury to the guard member.
(f) (1) Anyamount obtained by any person by settlement with, judgment against, orotherwise from the third party by reason of such injury or death shall bedisbursed by order of the court for the following purposes and in the followingorder of priority:
a. First to the paymentof actual court costs taxed by judgment.
b. Second to thepayment of the fee of the attorney representing the person making settlement orobtaining judgment, and such fee shall not exceed one third of the amountobtained or recovered of the third party.
c. Third to thereimbursement of the State for all benefits by way of compensation or medicaltreatment expense paid or to be paid by the State pursuant to G.S. 127A‑108.
d. Fourth to the paymentof any amount remaining to the guard member or personal representative.
(2) The attorney feepaid under (f)(1) shall be paid by the guard member and the State in directproportion to the amount each shall receive under (f)(1)c and (f)(1)d hereofand shall be deducted from such payments when distribution is made.
(g) In any proceedingagainst or settlement with the third party, every party to the claim forcompensation shall have a lien to the extent of the party's interest under (f)hereof upon any payment made by the third party by reason of such injury ordeath, whether paid in settlement, in satisfaction of judgment, asconsideration for covenant not to sue, or otherwise and such lien may beenforced against any person receiving such funds. Neither the guard member orpersonal representative nor the State shall make any settlement with or acceptany payment from the third party without the written consent of the other andno release to or agreement with the third party shall be valid or enforceable forany purpose unless both State and guard member or personal representative jointherein; provided, that this sentence shall not apply if the State is madewhole for all benefits paid or to be paid by him under this Chapter lessattorney's fees as provided by (f)(1) and (2) hereof and the release to oragreement with the third party is executed by the guard member. The AttorneyGeneral shall have the right on behalf of the State to reduce by compromise itsclaim.
(h) Institution ofproceedings against or settlement with the third party, or acceptance ofbenefits under this Chapter, shall not in any way or manner affect any otherremedy which any party to the claim for compensation may have except asotherwise specifically provided in this Chapter, and the exercise of one remedyshall not in any way or manner be held to constitute an election of remedies soas to bar the other. (1967, c. 1081, s. 1; 1975, c. 604, s. 2.)