Tennessee § 50-6-112 - Actions against third persons — Attorney's fees — Distribution of recovery — Limitations period.

§ 50-6-112. Actions against third persons — Attorney's fees — Distribution of recovery — Limitations period.

When the injury or death for which compensation is payable under this chapter was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured worker, or the injured worker's dependents, shall have the right to take compensation under this chapter, and the injured worker, or those to whom the injured worker's right of action survives at law, may pursue the injured worker's or their remedy by proper action in a court of competent jurisdiction against the other person. In the event of a recovery from the other person by the worker, or those to whom the worker's right of action survives, by judgment, settlement or otherwise, the attorney representing the injured worker, or those to whom the injured worker's right of action survives, and effecting the recovery, shall be entitled to a reasonable fee for the attorney's services, and the attorney shall have a first lien for the fees against the recovery; provided, that if the employer has engaged other counsel to represent the employer in effecting recovery against the other person, then a court of competent jurisdiction shall, upon application, apportion the reasonable fee between the attorney for the worker and the attorney for the employer, in proportion to the services rendered. In the event of a recovery against the third person by the worker, or by those to whom the worker's right of action survives, by judgment, settlement or otherwise, and the employer's maximum liability for workers' compensation under this chapter has been fully or partially paid and discharged, the employer shall have a subrogation lien against the recovery, and the employer may intervene in any action to protect and enforce the lien. In the event the net recovery by the worker, or by those to whom the worker's right of action survives, exceeds the amount paid by the employer, and the employer has not, at the time, paid and discharged the employer's full maximum liability for workers' compensation under this chapter, the employer shall be entitled to a credit on the employer's future liability, as it accrues, to the extent the net recovery collected exceeds the amount paid by the employer. In the event the worker, or those to whom the worker's right of action survives, effects a recovery, and collection of that recovery, from the other person, by judgment, settlement or otherwise, without intervention by the employer, the employer shall nevertheless be entitled to a credit on the employer's future liability for workers' compensation, as it accrues under this chapter, to the extent of the net recovery. The action against the other person by the injured worker, or those to whom the injured worker's right of action survives, must be instituted in all cases within one (1) year from the date of injury. Failure on the part of the injured worker, or those to whom the injured worker's right of action survives, to bring the action within the one-year period shall operate as an assignment to the employer of any cause of action in tort that the worker, or those to whom the worker's right of action survives, may have against any other person for the injury or death, and the employer may enforce the cause of action in the employer's own name or in the name of the worker, or those to whom the worker's right of action survives, for the employer's benefit, as the employer's interest may appear, and the employer shall have six (6) months after the assignment within which to commence the suit. If the cause of action described in subsection (a) arises in a jurisdiction other than this state and the other jurisdiction has a statute of limitations for personal injury and wrongful death greater than the one-year statute of limitations provided in this state, the court hearing the cause of action shall apply the statute of limitations that provides the injured worker, or those to whom the injured worker's right of action survives, the greatest amount of time in which to institute an action. Under no circumstances shall the negligent party described in subsection (a) benefit from this subsection (d). Acts 1919, ch. 123, § 14; Shan. Supp., § 3608a163; Code 1932, § 6865; Acts 1949, ch. 277, § 1; C. Supp. 1950, § 6865; Acts 1963, ch. 333, § 1; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-914; Acts 1985, ch. 393, § 2. Textbooks. Tennessee Jurisprudence, 23 Tenn. Juris., Subrogation, § 4; 26 Tenn. Juris., Workers' Compensation, §§ 34, 48-56. Law Reviews. Comparative Fault in Tennessee: Where Are We Going and Why Are We in this Handbasket?, 67 Tenn. L. Rev. 765 (2000). Employer not liable for manager's egregious misconduct (Timothy S. Bland and Licia M. Williams), 37 No. 10 Tenn. B.J. 17 (2001). Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee (Carol A. Mutter), 57 Tenn. L. Rev. 199 (1990). Subrogation of Future Medical Payments (John A. Day), 36 No. 8 Tenn. B.J. 33 (2000). The OSHA Hazard Communication Standard (Gary C. Shockley), 25 No. 5 Tenn. B.J. 22 (1989). Attorney General Opinions. Constitutionality of using presumptions to determine reasonableness of case management costs, OAG 98-084 (4/14/98).