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44-504. Remedy against negligent third party; employer and workers compensation fund subrogated, exclusion; credits against future payments; limitation of actions; attorney fees. (a) When the injury or death for which compensation is payable under the workers compensation act was caused under circumstances creating a legal liability against some person other than the employer or any person in the same employ to pay damages, the injured worker or the worker's dependents or personal representatives shall have the right to take compensation under the workers compensation act and pursue a remedy by proper action in a court of competent jurisdiction against such other person.

(b) In the event of recovery from such other person by the injured worker or the dependents or personal representatives of a deceased worker by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery and shall have a lien therefor against the entire amount of such recovery, excluding any recovery, or portion thereof, determined by a court to be loss of consortium or loss of services to a spouse. The employer shall receive notice of the action, have a right to intervene and may participate in the action. The district court shall determine the extent of participation of the intervenor, including the apportionment of costs and fees. Whenever any judgment in any such action, settlement or recovery otherwise is recovered by the injured worker or the worker's dependents or personal representative prior to the completion of compensation or medical aid payments, the amount of such judgment, settlement or recovery otherwise actually paid and recovered which is in excess of the amount of compensation and medical aid paid to the date of recovery of such judgment, settlement or recovery otherwise shall be credited against future payments of the compensation or medical aid. Such action against the other party, if prosecuted by the worker, must be instituted within one year from the date of the injury and, if prosecuted by the dependents or personal representatives of a deceased worker, must be instituted within 18 months from the date of such injury.

(c) Failure on the part of the injured worker, or the dependents or personal representatives of a deceased worker to bring such action within the time specified by this section, shall operate as an assignment to the employer of any cause of action in tort which the worker or the dependents or personal representatives of a deceased worker may have against any other party for such injury or death, and such employer may enforce the cause of action in the employer's name or in the name of the worker, dependents or personal representatives for their benefit as their interest may appear by proper action in any court of competent jurisdiction. The court shall fix the attorney fees which shall be paid proportionately by the employer and employee in the amounts determined by the court.

(d) If the negligence of the worker's employer or those for whom the employer is responsible, other than the injured worker, is found to have contributed to the party's injury, the employer's subrogation interest or credits against future payments of compensation and medical aid, as provided by this section, shall be diminished by the percentage of the recovery attributed to the negligence of the employer or those for whom the employer is responsible, other than the injured worker.

(e) In any case under the workers compensation act in which the workers compensation fund has paid or is paying compensation, the workers compensation fund is hereby subrogated to the rights of the employer under this section and shall have all the rights of subrogation or to credits against future compensation payments which are granted to the employer by this section. The commissioner of insurance may exercise all such rights for the fund to the same extent that such rights may be exercised by the employer under this section, including the right to intervene, to enforce a lien or to bring any cause of action, all as provided in this section.

(f) As used in this section, "compensation and medical aid" includes all payments of medical compensation, disability compensation, death compensation, including payments under K.S.A. 44-570 and amendments thereto, and any other payments made or provided pursuant to the workers compensation act.

(g) In any case under the workers compensation act in which the workers compensation fund or an insurer or a qualified group-funded workers compensation pool, as provided in K.S.A. 44-532 and amendments thereto, is subrogated to the rights of the employer under the workers compensation act, the court shall fix the attorney fees which shall be paid proportionately by the workers compensation fund, insurer or qualified group-funded workers compensation pool and the worker or such worker's dependents or personal representatives in the amounts determined by the court based upon the amounts to be received from any recovery pursuant to an action brought under this section.

History: L. 1927, ch. 232, § 4; L. 1938, ch. 50, § 1; L. 1947, ch. 287, § 1; L. 1955, ch. 250, § 1; L. 1961, ch. 243, § 10; L. 1967, ch. 280, § 2; L. 1974, ch. 203, § 3; L. 1982, ch. 212, § 1; L. 1988, ch. 166, § 1; L. 1993, ch. 286, § 26; July 1.

Source or prior law:

L. 1911, ch. 218, § 5; R.S. 1923, 44-504.

Cross References to Related Sections:

Attorney fees in other workers compensation cases, see 44-512a, 44-536, 44-566a.

Law Review and Bar Journal References:

Survey of law of workmen's compensation, Thomas M. Van Cleave, Jr., 12 K.L.R. 363 (1963).

1963-65 survey of civil practice, Earl B. Shurtz, 14 K.L.R. 171, 174 (1965).

Discussion of court's interpretation, Thomas M. Van Cleave, Jr., 14 K.L.R. 393, 401 (1965).

An employee is not precluded from prosecuting an action in his own name after the expiration of the one year period of limitation, Andrew S. Hartnett, II, 36 J.B.A.K. 121, 123 (1967).

"Changes in Workman's Compensation," William F. Morrissey, 36 J.B.A.K. 173 (1967).

"Employer Liability to Third Parties under the Workmen's Compensation and Comparative Negligence Statutes," Ruth C. Nelson, 26 K.L.R. 485, 487 (1978).

"No Fault—The Insurer's Reimbursement Rights Under the New Statute," William R. Sampson, 46 J.B.A.K. 211, 220, 221 (1977).

"Brown and Miles: At Last, An End to Ambiguity in the Kansas Law of Comparative Negligence," Hal D. Meltzer, 27 K.L.R. 111, 131 (1978).

"Survey of Kansas Law: Torts," William Edward Westerbeke, 27 K.L.R. 321, 345 (1979).

"Survey of Kansas Law: Workers' Compensation," William A. Kelly, 27 K.L.R. 377, 389 (1979).

"Comparative Fault and Strict Products Liability in Kansas: Reflections on the Distinction Between Initial Liability and Ultimate Loss Allocation," William Edward Westerbeke and Hal D. Meltzer, 28 K.L.R. 25, 94 (1979).

"Legislation 1982," Rep. David J. Heinemann, 51 J.K.B.A. 101, 126 (1982).

"K.S.A. 60-258a Revisited; Survey of Current Trends in the Kansas Law of Comparative Negligence," Craig C. Blumreich, 5 J.K.T.L.A. No. 6, 8, 12 (1982).

"Architects' Liability for Construction Site Accidents," Wyatt A. Hoch, 30 K.L.R. 429, 441 (1982).

"Workers' Compensation: The Exclusive Remedy Rule Is Alive and Well in Kansas [Hormann v. New Hampshire Insurance Co., 236 Kan. 190, 689 P.2d 837 (1984)]," Janet K. Kerr, 25 W.L.J. 192, 194, 201 (1985).

"Worker Compensation; Attorney's Fees Under K.S.A. 44-536a," Gary L. Jordan, Vol. 6, No. 6, J.K.T.L.A. 21 (1983).

"Survey of Kansas Tort Law," William E. Westerbeke and Reginald L. Robinson, 37 K.L.R. 1005, 1029 (1989).

"More Goo for Our Tort Stew: Implementing the Kansas Collateral Source Rule," James Concannon and Ron Smith, 58 J.K.B.A. No. 2, 19, 23, 28 (1989).

"Workers' Compensation Review," Patrick Nichols, XIV J.K.T.L.A. No. 3, Review p. 4 (1991).

"Workers Compensation: Apportionment of Attorney Fees in Third-Party Recoveries," Randall E. Fisher, XIV J.K.T.L.A. No. 3, 12 (1991).

"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XIV, No. 6, Review p. 1 (1991).

"Money Left on the Table," Gerald W. Scott, J.K.T.L.A. Vol. XV, No. 2, 9 (1991).

"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XV, No. 3, Review p. 1 (1992).

"Uninsured/Underinsured Motorist Insurance: A Sleeping Giant," Gerald W. Scott, 63 J.K.B.A. No. 4, 28, 39 (1994).

"Practitioner's Guide To Subrogation Liens And Reimbursement Rights," Gary D. White, Jr., J.K.T.L.A. Vol. XVIII, No. 4, 5, 7 (1995).

"Workers Compensation Review," J.K.T.L.A. Vol. XXI, No. 3, Review Section, 22 (1998).

"Workers Compensation Review," J.K.T.L.A. Vol. XXI, No. 4, Review Section, 27, 28 (1998).

"Survey of Kansas Tort Law: Part I," William E. Westerbeke and Stephen R. McAllister, 49 K.L.R. 1037 (2001).

"Liens, Liens & More Liens," David P. Calvert, J.K.T.L.A. Vol. 25, No. 5, 10 (2002).

"The Clash Between Workers' Compensation Benefits and Underinsured Motorists Benefits Under Kansas Law," Brooke A. Bennett, 51 K.L.R. 155 (2002).

Attorney General's Opinions:

Statutory basis for rules and regulations concerning prohibition of subrogation clauses by insurance commissioner. 84-35.

CASE ANNOTATIONS

Explanation, see Revisor's Note under article title, chapter 44, article 5.

Cases through 1973

RIGHT TO DOUBLE RECOVERY (1-6)

1. The fact a workman has received compensation from his employer for the same injury constitutes no defense, or partial defense, to a negligent third party in an action against him by the workman for damages.

(a) Barker v. Zeckser, 179 Kan. 596, 600, 296 P.2d 1085 (1956);

(b) Davison v. Eby Construction Co., 169 Kan. 256, Syl. 2, 218 P.2d 219 (1950);

(c) Waterbury v. Riss & Company, 169 Kan. 271, 290, 219 P.2d 673 (1950);

(d) Clifford v. Eacrett, 163 Kan. 471, 477, 183 P.2d 861 (1947);

(e) Long v. American Employers Ins. Co., 148 Kan. 520, 525, 83 P.2d 674 (1938);

(f) Pattrick v. Riggs, 148 Kan. 741, 743, 84 P.2d 840 (1938);

(g) Acock v. Kansas City Power & Light Co., 135 Kan. 389, 394, 10 P.2d 877 (1932);

(h) Early v. Burt, 134 Kan. 445, 453, 455, 7 P.2d 95 (1932);

(i) Jolley v. United Power & Light Corp., 131 Kan. 102, 105, 289 P. 962 (1930);

(j) Riddle v. Higley Motor Co., 122 Kan. 458, Syl., 252 P. 231 (1927);

(k) Stamps v. Railroad Co., 114 Kan. 477, 478, 218 P. 1115 (1923).

2. Within one year of accident, action for negligence brought by workman against third party; compensation act is not pleadable as defense.

(a) Walta v. Bayer Construction Co., 185 Kan. 408, 409, 345 P.2d 631 (1959);

(b) Barker v. Zeckser, 179 Kan. 596, 296 P.2d 1085 (1956);

(c) Davison v. Eby Construction Co., 169 Kan. 256, 218 P.2d 219 (1950).

3. Two contractors working on same building; injured workman collected compensation from his employer and sued the other on theory of third party negligence; proper procedure. Coleman v. Patti Construction Co., 182 Kan. 53, 56, 318 P.2d 1028 (1957).

4. Medical expenses paid workman by third party wrongdoer are also recoverable by workman from his employer in compensation action.

(a) Babcock v. Dose, 178 Kan. 700, 704, 290 P.2d 1046 (1955);

(b) Clifford v. Eacrett, 163 Kan. 471, 183 P.2d 861 (1947).

5. Employer's waiver of right to sue third party does not prevent suit by employee. Jolley v. United Power & Light Corp., 131 Kan. 102, 105, 289 P. 962 (1930).

6. Action against third party not precluded by recovery under Texas act. Kelly v. Summers, 210 F.2d 665 (1954).

TIME LIMITATION OF ACTIONS (9-17)

9. Action against third party by widow after 18 months; petition amended to include employer and insurance carrier; amendment related back; action not barred.

(a) Lady v. Ketchum, 186 Kan. 614, 616-623, 352 P.2d 21 (1960);

(b) Jordan v. Lacey, 189 Kan. 169, 368 P.2d 34 (1962).

10. Petition must disclose the interest of the employer (or carrier) if filed by them for dependents, and this disclosure must be made within the statutory period.

(a) Krol v. Coryell, 168 Kan. 455, 458, 214 P.2d 314 (1950);

(b) Elam v. Bruenger, 165 Kan. 31, 38, 193 P.2d 225 (1948);

(c) Krol v. Coryell, 162 Kan. 198, 200-205, 175 P.2d 423 (1946).

11. Striking defense that action by workman not commenced within one year, error.

(a) Erb v. Atchison, Topeka & Santa Fe Rly. Co., 180 Kan. 60, 61, 62, 299 P.2d 35 (1956);

(b) Sundgren v. Topeka Transportation Co., 178 Kan. 83, 87, 88, 283 P.2d 444 (1955).

12. First petition filed within time did not state cause of action; amended petition does not relate back to time of filing first petition; action barred by time limitation of this section.

(a) Turner v. Benton, 183 Kan. 97, 99, 100, 101, 102, 325 P.2d 349 (1958);

(b) Gorrell v. Kansas Power & Light Co., 189 Kan. 374, 378, 369 P.2d 342 (1962);

(c) Whitaker v. Douglas, 179 Kan. 64, 72, 292 P.2d 688 (1956).

13. Two-year limitation herein not civil code governs action against third party. Welsh v. Hafeman, 274 F.2d 79 (1959).

14. Employer's action is in tort; action barred by ¶ 3 of former K.S.A. 60-306. Lumbermen's Mut. Cas. Co. v. Dodge City Cement Pr. Co., 88 F. Supp. 643 (1950).

15. Action brought in name of workman against third party more than one year and less than two years from date of injury held valid. Bingham v. Hillcrest Bowl, Inc., 193 Kan. 201, 392 P.2d 942 (1964).

16. Workman may bring action in behalf of himself, employer and insurance carrier after year has expired. Klein v. Wells, 194 Kan. 528, 537, 538, 400 P.2d 1002 (1965).

17. Action brought on behalf of plaintiff, his employer and insurance carrier more than one but less than two years after injury not barred. Houk v. Arrow Drilling Co., 201 Kan. 81, 83, 86, 87, 439 P.2d 146 (1968).

EXCLUSIVE REMEDY, WHEN

—In general (22-24)

22. If a workman can recover compensation under the act from a party for an injury, he cannot maintain a common law negligence action for damages against such party.

(a) Lessley v. Kansas Power & Light Co., 171 Kan. 197, 203, 231 P.2d 239 (1951);

(b) Whitaker v. Douglas, 179 Kan. 64, 71, 292 P.2d 688 (1956);

(c) Bright v. Bragg, 175 Kan. 404, Syl. 5, 264 P.2d 494 (1953);

(d) Crawford v. Atchison, Topeka & S. F. Rly. Co., 166 Kan. 163, 165, 199 P.2d 796 (1948);

(e) Hoffman v. Cudahy Packing Co., 161 Kan. 345, Syl. 2, 167 P.2d 613 (1946);

(f) Duncan v. Perry Packing Co., 162 Kan. 79, Syl. 2, 174 P.2d 78 (1946);

(g) Bailey v. Mosby Hotel Co., 160 Kan. 258, 259, 160 P.2d 701 (1945);

(h) Jennings v. Kansas Power & Light Co., 152 Kan. 469, 473, 105 P.2d 882 (1940);

(i) Phoenix Indemnity Co. v. Barton Torpedo Co., 137 Kan. 92, 19 P.2d 739 (1933).

23. Workman suing third party in common law action not to join employer or his insurance carrier as plaintiff; compensation in such a case has no place in the pleadings or evidence.

(a) Davison v. Eby Construction Co., 169 Kan. 256, Syl. 2, 261, 218 P.2d 219 (1950);

(b) Barker v. Zeckser, 179 Kan. 596, 599, 296 P.2d 1085 (1956);

(c) Moeser v. Shunk, 116 Kan. 247, Syl. 4, 226 P. 784 (1924).

24. Injuries not caused by someone other than "employee"; workmen's compensation exclusive remedy. Anderson v. Beardmore, 210 Kan. 343, 345, 502 P.2d 799 (1972).

—Special employment (29-32)

29. Special employer not "third party" against whom damages may be recovered. Bright v. Bragg, 175 Kan. 404, 414, 264 P.2d 494 (1953).

30. Defendant was not special employer under K.S.A. 44-503 (a); action for damages properly brought hereunder. Gilliland v. Kansas Soya Products Co., 189 Kan. 446, 447, 450, 451, 370 P.2d 78 (1962).

31. Defendant not special employer under K.S.A. 44-503 (a); wrongful death action properly brought hereunder. Schafer v. Kansas Soya Products Co., 187 Kan. 590, 598, 358 P.2d 737 (1961).

32. Defense that plaintiff was special employee of defendant and therefore within compensation act rejected because no allegation of contract. Robinson v. Muller, 181 Kan. 150, 153, 309 P.2d 651 (1957).

ONE CAUSE OF ACTION

—In general (37-41)

37. There is a community of interest as between the employee and employer in actions against a negligent third party; there is but one cause of action and it belongs either to the employee or the employer or his insurance carrier; see, also, K.S.A. 44-532.

(a) Miller v. Broce-O'Dell Concrete Products, 182 Kan. 77, 80, 318 P.2d 1072 (1957).

(b) Sundgren v. Topeka Transportation Co., 178 Kan. 83, 87, 283 P.2d 444 (1955).

38. Employer paying compensation but not in full compliance with technical provisions of act may maintain action against third party. Roehrman v. D. S. & O. Rural Electric Co-operative Ass'n, 178 Kan. 52, 59, 60, 283 P.2d 411 (1955).

39. Only one cause of action against third party. Sundgren v. Topeka Transportation Co., 178 Kan. 83, 85, 86, 88, 283 P.2d 444 (1955).

40. Section creates but one cause of action. Black, Sivalls & Bryson v. Sheahan, 88 F. Supp. 639, 640, 641, 642 (1950).

41. Workman accepted award under Kansas act; workman's action in Missouri against third party held barred hereunder. Farnham v. Daar, Inc., 184 F. Supp. 809, 810, 811 (1960).

—Statutory assignment (46-50)

46. Failure by injured workman to bring third party action within one year of injury operates as a statutory assignment of such right to his employer to bring the action during the second year.

(a) Erb v. Atchison, Topeka & Santa Fe Rly. Co., 180 Kan. 60, 62, 299 P.2d 35 (1956);

(b) Terrell v. Ready Mixed Concrete Co., 174 Kan. 633, Syl. 3, 638, 258 P.2d 275 (1953);

(c) Wise v. Morgan-Mack Motor Co., 173 Kan. 372, 246 P.2d 308 (1952).

47. Employer statutory representative for the injured employee for the purpose of bringing action; fact employer reimbursed does not destroy the right nor obligation. Rumbaugh v. Vonfeldt, 190 Kan. 798, 805, 378 P.2d 5 (1963).

48. Right to bring action against the wrongdoer under this section is not dependent on the extent of the interest of the employee or employer. Rumbaugh v. Vonfeldt, 190 Kan. 798, 805, 378 P.2d 5 (1963).

49. Cited; action brought for benefit of plaintiff, employer and workmen's compensation carrier. Ballhorst v. Hahner-Foreman-Cale, Inc., 207 Kan. 89, 90, 484 P.2d 38 (1971).

50. Mentioned where employer's insurer filed action against lessor of land upon which workman was injured. Transport Insurance Co. v. Huston, 207 Kan. 759, 486 P.2d 1344 (1971).

—Subrogation (54-58)

54. Subrogation action by insurance carrier brought pursuant to this section and K.S.A. 44-532. Employers' Mutual Casualty Co. v. Martin, 189 Kan. 498, 370 P.2d 110 (1962).

55. Construed with K.S.A. 44-532; insurer may maintain damage action for workman, when.

(a) Wise v. Morgan-Mack Motor Co., 173 Kan. 372, 377, 378, 246 P.2d 308 (1952);

(b) Turner v. Benton, 183 Kan. 97, 100, 325 P.2d 349 (1958).

56. Insurance carrier not permitted to actively participate in trial of claimant's action against third party; compensation proceedings have no place in the trial of common law action. Gorrell v. Kansas Power & Light Co., 189 Kan. 374, 375-378, 369 P.2d 342 (1962).

57. Cited in wrongful death action; trial court's failure to instruct jury on subrogated recovery for benefit of workmen's compensation carrier held not to affect rights of parties. Wood v. Gautier, 201 Kan. 74, 76, 439 P.2d 73 (1968).

58. Employer's lien on proceeds of action hereunder not abrogated by employer's alleged negligence; error to submit question of employer's negligence. Houk v. Arrow Drilling Co., 201 Kan. 81, 82, 92, 439 P.2d 146 (1968).

HISTORY OF SECTION (63-70)

63. Employer may bring action regardless of his having actual monetary interest in the result; history of section discussed; construed; cases reviewed. Rumbaugh v. Vonfeldt, 190 Kan. 798, 799-806, 378 P.2d 5 (1963).

64. Employer's recovery limited; history of section discussed. Krol v. Coryell, 162 Kan. 198, 200-205, 175 P.2d 423 (1946).

65. History of section discussed. Clifford v. Eacrett, 163 Kan. 471, 474, 475, 183 P.2d 861 (1947).

66. Nature and effect of election hereunder prior to 1938 amendment discussed. Long v. American Employers Ins. Co., 148 Kan. 520, 524, 525 83 P.2d 674 (1938).

67. 1947 amendment changed substantive law not merely the remedy. Elam v. Bruenger, 165 Kan. 31, 33-40, 193 P.2d 225 (1948).

68. 1947 amendment changed substantive law not only remedy; amendment not retroactive. Black, Sivalls & Bryson v. Sheahan, 88 F. Supp. 639, 640, 641, 642 (1950).

69. Co-employee is "some person other than the employer"; history of section considered; heirs of employee may maintain wrongful death action. Roda v. Williams, 195 Kan. 507, 508, 512, 513, 407 P.2d 471 (1965).

70. Prior to 1967 amendment to this section, fellow employees were within operation of act and subject to common law liability for negligence. Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 367, 378, 450 P.2d 10 (1969).

MISCELLANEOUS (75-87)

75. Employee of principal contractor may sue subcontractor for injury caused by his negligence. Davison v. Eby Construction Co., 169 Kan. 256, Syl. 3, 263, 218 P.2d 219 (1950).

76. Section inapplicable when compensation rights not asserted; action against third party.

(a) Davis v. Reed, 188 Kan. 159, 160-166, 360 P.2d 847 (1961).

(b) Lewis v. Confer, 188 Kan. 779, 782, 783, 365 P.2d 1103 (1961).

77. Parties at time of settlement placed their own interpretation upon statute and thereby fixed their respective rights and obligations. Flott v. Wenger Mixer Manufacturing Co., 189 Kan. 80, 81, 85, 86, 87, 88, 91, 367 P.2d 44 (1961).

78. Section does not place duty to pay attorney fees on third party tort-feasor; proper division between claimant and employer to be ordered by court; rule for division stated. U.S. Fidelity & Guaranty Co. v. Allied Mutual Cas. Co., 190 Kan. 383, 384, 385, 375 P.2d 619 (1962).

79. Wrongful death action does not survive wrongdoer's death. Kelly v. Johnson, 147 Kan. 74, 75, 76, 75 P.2d 209 (1938).

80. Employer and workman both under act; compensation case found no personal injury by accident; dependents may bring common law damage action and compensation act is not a bar. Contrary was held in first opinion and reversed on rehearing. Echord v. Rush, 122 Kan. 260, 251 P. 1112 (1927); 124 Kan. 521, 523, 261 P. 820 (1927).

81. Failure to make report of accident as required by K.S.A. 44-557 does not preclude employer from recovering from third party wrongdoer by an action under K.S.A. 44-504. Roehrman v. D. S. & O. Rural Electric Co-operative Ass'n, 178 Kan. 52, 59, 60, 283 P.2d 411 (1955).

82. Employee acting in supervisory capacity is a "person other than an employer." Tully v. Estate of Gardner, 196 Kan. 137, 139, 409 P.2d 782 (1966).

83. Right of action of employee of independent contractor against principal contractor considered. Hanna v. CRA, Inc., 196 Kan. 156, 158, 409 P.2d 786 (1966).

84. Section mentioned; no provision in act for restitution of payments made pending appeal. Tompkins v. Rinner Construction Co., 196 Kan. 244, 249, 409 P.2d 1001 (1966).

85. Action brought in name of employee against third party; business invitee. Bingham v. Hillcrest Bowl, Inc., 199 Kan. 40, 41, 427 P.2d 591 (1967).

86. Action brought hereunder; K.S.A. 44-503 construed. Bendure v. Great Lakes Pipe Line Co., 199 Kan. 696, 697, 433 P.2d 558 (1967).

87. Employee of one independent contractor may bring action hereunder against another independent contractor of same general contractor; participation of employer considered. Houk v. Arrow Drilling Co., 201 Kan. 81, 89, 90, 91, 439 P.2d 146 (1968).

Cases after 1973

88. Applied; action by employee against negligent third party after compensation paid; reduction of liability by showing of negligence by employer and employee. Beach v. M & N Modern Hydraulic Press Co., 428 F. Supp. 956, 957, 959, 960, 965.

89. Applied in construing K.S.A. 40-3113; insurer's right to full reimbursement of PIP benefits paid to insured determined. Easom v. Farmers Insurance Co., 221 Kan. 415, 431, 560 P.2d 117.

90. Injured worker may bring action against negligent third party; employer's subrogation. McCleskey v. Noble Corp., 2 Kan. App. 2d 240, 243, 577 P.2d 830.

91. Provision for attorney fees applicable to actions brought under both paragraphs (b) and (c). Nordstrom v. City of Topeka, 228 Kan. 336, 337, 338, 339, 340, 342, 613 P.2d 1371.

92. In recovery by injured workmen from third-party tort-feasor, employer subrogated to extent of compensation and medical aid provided; no reduction in amount of subrogation allowed regardless of concurrent negligence of employer. Negley v. Massey Ferguson, Inc., 229 Kan. 465, 467, 469, 470, 625 P.2d 472.

93. Payment to workmen's compensation fund under K.S.A. 44-570 is not compensation, but funeral expenses under K.S.A. 44-510b(f) are compensation for which an insurer may be subrogated. Farm Bureau Mutual Ins. Co. v. Commercial Standard Ins. Co., 5 Kan. App. 2d 127, 128, 129, 612 P.2d 1265.

94. Carrier's subrogation rights did not extend to recovery of employee upon uninsured motorist policy, even though policy was paid for by employer. Knight v. Insurance Co. of North America, 647 F.2d 127, 128, 129 (1981).

95. To avoid one year statute of limitation, employee must plead cause of action for himself, his employer and workmen's compensation insuror; plaintiff allowed to amend complaint. Baird v. Phillips Petroleum Co., 535 F. Supp. 1371, 1374, 1375 (1981).

96. Mere co-employee status is not sufficient for immunity against suit. Wells v. Anderson, 8 Kan. App. 2d 431, 432, 435, 659 P.2d 833 (1983).

97. No error in striking portions of affidavits opposing motion for summary judgment which contradicted prior depositions. Mays v. Ciba-Geigy Corp., 233 Kan. 38, 46, 661 P.2d 348 (1983).

98. Act held constitutional; civil damage action cannot be maintained by person against fellow employee for compensation for injury covered by this act. Rajala v. Doresky, 233 Kan. 440, 441, 442, 661 P.2d 1251 (1983).

99. Employer's subrogation interest or credits considered in construing subsection (d); subsection is prospective. McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, 768, 769, 667 P.2d 289 (1983).

100. Employer joined as defendant in action to determine percentage of causal negligence with no interest in action other than subrogation, properly excused from attendance at trial where no objection made. Powers v. Kansas Power & Light Co., 234 Kan. 89, 96, 671 P.2d 491 (1983).

101. Employee's product liability suit, brought within two-year tort limitation but not one-year workers' compensation act limitation, amended to be for benefit of employee, employer and insurer. Thomas v. Heinrich Equipment Corp., 563 F. Supp. 152, 153 (1983).

102. Intervening employer can appeal adverse decision where employee/plaintiff fails to appeal. Blank v. Chawla, 234 Kan. 975, 978, 678 P.2d 162 (1984).

103. Dual-capacity doctrine applied where employer had assumed assets and liabilities of third-party tortfeasor. Kimzey v. Interpace Corp., 10 Kan. App. 2d 165, 167, 170, 694 P.2d 907 (1985).

104. Injured employee not barred from suing third-party tortfeasors under subsection (a); exclusion of evidence of workers' compensation recovery. Anderson v. National Carriers, Inc., 10 Kan. App. 2d 203, 206, 695 P.2d 1293 (1985).

105. Where settlement and total award canceled each other, trial court correct in denying claimant claimed personal losses. Houston v. Kansas Highway Patrol, 23 Kan. 192, 195, 196, 708 P.2d 533 (1985).

106. Subrogation right arises after judgment; effective date of statute, not accident, controls; plaintiff's attorney fees examined; employer entitled to interest on lien from judgment date. Anderson v. National Carriers, Inc., 11 Kan. App. 2d 190, 194, 196, 198, 717 P.2d 1068 (1986).

107. Date when subrogation right (d) arises, payment of plaintiff's attorney fees from insurers subrogation proceeds (c) examined. Anderson v. National Carriers, Inc., 240 Kan. 101, 105, 106, 727 P.2d 899 (1986).

108. Plaintiff-intervenor not entitled to attorney fees in third-party action by employee. Leroy v. City of Coffeyville, 671 F. Supp. 23, 25 (1987).

109. Employer's subrogation rights against third party and employee; employee's negligence claim against employer examined. Brown v. Globe Union, a Div. of Johnson Controls, 694 F. Supp. 795 (D. Colo. 1988).

110. Carrier's entitlement to share in sums employer received in settlement with tortfeasor examined. Leroy v. Hartford Steam Boiler Inspec. and Ins. Co., 695 F. Supp. 1120, 1122 (D. Kan. 1988).

111. Liability of workers compensation fund (K.S.A. 44-567) to electing self-employed handicapped worker determined. Miller v. Miller, 13 Kan. App. 2d 262, 266, 768 P.2d 308 (1989).

112. Right of employer and insurer to intervene in malpractice action filed by employee for aggravation of compensable injury examined. Roberts v. Krupka, 13 Kan. App. 2d 691, 779 P.2d 447 (1989).

113. Employer and carrier granted subrogation from worker's medical malpractice recovery for benefits paid, where primary injury aggravated by malpractice. Roberts v. Krupka, 246 Kan. 433, 443, 790 P.2d 422 (1990).

114. Attorney fees provisions examined; "amounts to be received from any recovery..." refers to recovery from third-party tortfeasor. Lemery v. Buffalo Airways, Inc., 14 Kan. App. 2d 301, 308, 789 P.2d 1176 (1990).

115. All elements of personal injury damages, as fully set out in the opinion, are subject to subrogation. McGranahan v. McGough, 15 Kan. App. 2d 24, 30, 802 P.2d 593 (1990).

116. Recovery from defendant's automobile liability insurer subject to workers compensation subrogation while plaintiff's uninsured motorist coverage was not. Snodgrass v. State Farm Mut. Auto. Ins. Co., 15 Kan. App. 2d 153, 155, 804 P.2d 1012 (1991).

117. Whether money paid by tortfeasor's insurer under workers compensation lien is deductible from insured's underinsured motorist coverage (K.S.A. 40-284) examined. Allied Mut. Ins. Co. v. Gordon, 248 Kan. 715, 726, 811 P.2d 1112 (1991).

118. Computation of diminution of employer's subrogation interest for fault where worker obtains judgment against third party discussed and determined. Brabander v. Western Cooperative Electric, 248 Kan. 914, 811 P.2d 1216 (1991).

119. Worker's action against third party for loss of services is for damages not recoverable under act; subrogation disallowed. McGranahan v. McGough, 249 Kan. 328, 338, 820 P.2d 403 (1991).

120. Exclusive remedy defense applied in ruling Kansas workers compensation law applicable to injuries sustained by employees of federal contractors. Mahaffey v. U.S. 785 F. Supp. 148, 150 (1992).

121. Cited where limitations on participation by PIP carrier's counsel following intervention to recover duplicate benefits (K.S.A. 40-3113a) and attorney fees awarded to insured's counsel affirmed. Foveaux v. Smith, 17 Kan. App. 2d 685, 696, 843 P.2d 283 (1992).

122. Cited in holding insured may recover underinsured motorist benefits (K.S.A. 40-284) which are not duplicative of workers' compensation benefits. Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 683, 847 P.2d 1292 (1993).

123. Limitation on remedies examined when employee has no spouse, children or dependents. Karhoff v. National Mills, Inc., 18 Kan. App. 2d 302, 306, 851 P.2d 1021 (1993).

124. Whether vocational rehabilitation vendor costs are compensation and recoverable by claimant in employer subrogation cases examined. Varner v. Gulf Ins. Co., 18 Kan. App. 2d 801, 802, 803, 804, 859 P.2d 414 (1993).

125. Whether mutual mistake issue regarding agreement to release all unknown claims precluded summary judgment examined. Ferguson v. Schneider Nat. Carriers, Inc., 826 F. Supp. 398, 399 (1993).

126. Whether inherently dangerous exception to nonliability of landowner applies to independent contractor's employees covered by workers compensation examined. Dillard v. Strecker, 255 Kan. 704, 709, 877 P.2d 371 (1994).

127. Whether workers compensation insurer should be dismissed from action because not real party in interest examined. Sherlock v. BPS Guard Services, Inc., 849 F. Supp. 37, 38 (1994).

128. Assignment of employee's third-party action did not violate Missouri public policy; section applied in Missouri. Langston v. Hayden, 886 S.W.2d 82 (Mo.App.W.D.1994).

129. Issue concerning whether contractor's employee had implied contract with subcontractor precluded summary judgment on employee's negligence claim. Sac and Fox Nation of Missouri v. LaFever, 905 F. Supp. 904, 929 (1995).

130. Nonparticipant third-party tortfeasor in settlement agreement may have subrogation lien by percentage of fault attributed by trial court. Maas v. Huxtable and Assocs., Inc., 23 Kan. App. 2d 236, 237, 244, 929 P.2d 780 (1996).

131. Damages for consortium or loss of services are not compensable or subject to subrogation under workers compensation statutes. Fisher v. State Farm Mut. Auto. Ins. Co., 264 Kan. 111, 117, 955 P.2d 622 (1998).

132. City was not a necessary party to workers compensation carrier's action. Employers Mut. Cas. Co. v. Miner, 6 F. Supp. 2d 1232, 1234 (1998).

133. In workers compensation case, employer's subrogation lien on injured worker's tort recovery is limited to compensation and medical expenses paid by employer. Wishon v. Cossman, 268 Kan. 99, 106, 991 P.2d 415 (1999).

134. When employer waives its rights to statutory subrogation, employee's attorney is not entitled to attorney's fees on indemnity payment from third-party tortfeasor to employer. Deffenbaugh Industries v. Wilcox, 28 Kan. App. 2d 19, 11 P.3d 98 (2000).

135. Denial of motion to enforce workers compensation lien affirmed; recovery construed. Enfield ex rel. Enfield v. A.B. Chance Co., 228 F.3d 1245, 1247 (2000).

136. Defendant's K.S.A. 44-504 subrogation lien attaches to K.S.A. 40-284 substitute payment to plaintiff. Loucks v. Gallagher Woodsmall, Inc., 272 Kan. 710, 35 P.3d 782 (2001).

137. Principal employer's subrogation interest is reduced by the percentage of the fault of the immediate statutory employer. Duarte v. DeBruce Grain, Inc., 276 Kan. 598, 78 P.3d 428 (2003).

138. Settlement with co-worker's insurance company did not make co-worker "some other person" as to allow subrogation by employer. PMA Group v. Trotter, 281 Kan. 1344, 1351, 135 P.3d 1244 (2006).

139. Workers compensation lien recovery based on whether settlement released claims against tortfeasor. Jerby v. Truck Insurance Exchange, 36 Kan. App. 2d 199, 209, 138 P.3d 359 (2006).

140. Purpose of statute is to: (1) preserve workers' claims against third-party tortfeasors; and (2) prevent double recovery. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 166 P.3d 1047 (2007).

141. Injury to independent contractor's employee, landowner not liable for injury by dangerous condition, exception. Herrell v. National Beef Packing Co., 41 Kan. App. 2d 302, 202 P.3d 691 (2009).

142. When employee's recovery in a third-party lawsuit does not include an award for future medical expenses, employer is not entitled to credit against future medical expenses provided to employee. Henson v. Davis, 54 Kan. App. 2d 668, 676, 402 P.3d 1161 (2017).

143. An employer's subrogation lien and future credit are determined for calculating workers compensation benefits. Hawkins v. Sw. Kansas Co-op Svc., 58 Kan. App. 2d 38, 47, 464 P.3d 14 (2020).


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