§ 28-35-58 - Liability of third person for damages.
SECTION 28-35-58
§ 28-35-58 Liability of third person fordamages. – (a) Where the injury for which compensation is payable under chapters 29 –38 of this title was caused under circumstances creating a legal liability insome person other than the employer to pay damages in respect of the injury,the employee may take proceedings, both against that person to recover damagesand against any person liable to pay compensation under those chapters for thatcompensation, and the employee shall be entitled to receive both damages andcompensation. The employee, in recovering damages either by judgment orsettlement from the person so liable to pay damages, shall reimburse the personby whom the compensation was paid to the extent of the compensation paid as ofthe date of the judgment or settlement and the receipt of those damages by theemployee shall not bar future compensation. An insurer shall be entitled tosuspend the payment of compensation benefits payable to the employee when thedamages recovered by judgment or settlement from the person so liable to paydamages exceeds the compensation paid as of the date of the judgment orsettlement. The suspension paid shall be that number of weeks which are equalto the excess damages paid divided by the employee's weekly compensation rate;however, during the period of suspension the employee shall be entitled toreceive the benefit of all medical and hospital payments on his or her behalf.If the employee has been paid compensation under those chapters, the person bywhom the compensation was paid shall be entitled to indemnity from the personliable to pay damages, and to the extent of that indemnity shall be subrogatedto the rights of the employee to recover those damages. When money has beenrecovered either by judgment or by settlement by an employee from the personliable to pay damages, by suit or settlement, and the employee is required toreimburse the person by whom the compensation was paid, the employee or his orher attorney shall be entitled to withhold from the amount to be reimbursedthat proportion of the costs, witness expenses, and other out-of-pocketexpenses and attorney fees which the amount which the employee is required toreimburse the person by whom compensation was paid bears to the amountrecovered from the third party.
(b) In any case in which the employee or, in case of death,the administrator of the employee's estate neglects to exercise the employee'sright of action by failing to file a lawsuit against such third person withintwo (2) years and eight (8) months after the injury, the self-insured employeror the employer's insurance carrier may so proceed and shall be subrogated tothe rights of the injured employee or, in case of death, to the rights of theadministrator to recover against such person; provided, that no subrogationaction shall commence unless at least twenty-six (26) weeks prior to theexpiration of the two (2) years and eight (8) months the self-insured employeror the employer's insurance carrier has notified the employee or in the case ofdeath, the administrator of the employee's estate, in writing by personalservice or certified mail, that failure to commence such action within two (2)years and eight (8) months after the injury will operate as an assignment ofthe right of action to the self-insured employer or the employer's insurancecarrier. Upon filing the lawsuit the attorney for the self-insured employer orthe employer's insurance carrier shall notify the employee in writing bypersonal service or certified mail of the action and the name of the courtwhere it was filed and the employee may join as a plaintiff in the actionwithin thirty days after the notification, and, if the employee fails to join,the right of joinder shall abate. The right of the employee, or in case ofdeath, the administrator of the employee's estate, to be fully compensated forthe damages sustained shall be fully preserved as outlined in subsection (a) ofthis section.
(c) If the self-insured employer or the employer's insurancecarrier recovers from these other personal damages or benefits, after expensesand costs of action have been paid, in excess of the amount of the lien asdefined in this section, then that excess shall be paid to the injured employeeor, in the case of death, to the administrator of the employee's estate fordistribution.