Tuesday, March 07, 2006

Nebraska Court of Appeals (J. Sievers) holds that under "old" worker comp subrogation law (48-118 RRS Neb) Plaintiff in personal injury suit does not have standing to assert rights of the subrogated insurerErikson v. Abels (Not Designated for Permanent Publication) March 7, 2006. No. A-04-673. This case brings the court back to the "old" 48-118, the worker compensation subrogation law that directed "dollar for dollar" subrogation from a third party claim. The Plaintiff in this case, although she lost, tries to use that rule to salvage something out of her unsuccessful verdict in a car accident case. Plaintiff sued defendant for injuries from auto accident that occurred in 1990. Court of appeals in 2002 reversed first defense verdict on "range of vision" rule. Retrial also resulted in defense verdict. Court of appeals, somewhat perplexed by the plaintiff's appeal figures out Plaintiff's argument to be that he should be allowed to add on the worker comp subrogation claim and that the defendant somehow was strictly liable for the plaintiff's worker compensation costs. Plaintiff lacked standing to object to whether the trial court's handling of the subrogated worker comp insurer's rights was proper
The statutory right of subrogation belongs to Travelers, not to Erikson, by the plain language of § 48-118. The statutory scheme is easily summarized: Travelers can either "join" in and actively "prosecute" its subrogation claim as provided by § 48-118 or sit on the sidelines, allow Erikson to prosecute the claim, and then receive its share of the recovery and pay its share of the expenses
Court of appeals determines from Plaintiff's appeal that a third party defendant in an injury case is not strictly liable for injuries to a worker injured in the course and scope of employment
Erikson asserts that the trial court erred in finding that Abels "was not liable to Defendant [Travelers] on its subrogation claim for the workers' compensation benefits it paid to [Harold]." We are unaware of any such finding by the trial court, and Erikson's brief does not direct us to any such finding in the record.. Plaintiff's argument is that (worker comp insurer) was entitled to a verdict equal to the amount of benefits paid to and for Harold, irrespective of what the jury might award Plaintiff... Pl. appears to lack standing to assert a claim belonging to worker comp insurer and worker comp insurer has not appealed... In Neumann v. American Family Ins., 5 Neb. App. 704, 713, 563 N.W.2d 791, 796 (1997), we held that because of the statutory mandate that the employee was entitled to the "excess" over the subrogation interest of the insurer, the district court erred, as a matter of law, in attempting to equitably divide the $118,000 paid to the injured employee by the tort-feasors. Thus, in Neumann, there was no "excess" for the employee, whereas in the instant case, there are no "first dollars" for Travelers and no "excess" for Erikson, because the jury awarded nothing. For multiple reasons, this assignment of error in without merit.

No comments: