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 expensesCourt 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.