2000 Legislation
Print Friendly

HOUSE BILL NO. 549, As Amended – Workers comp, 3rd party, atty fees

HOUSE BILL NO. 549, As Amended

View Daily Data Tracking History

View Bill Text

View Amendment

View Statement of Purpose / Fiscal Impact



Text to be added within a bill has been marked with Bold and
Underline. Text to be removed has been marked with
Strikethrough and Italic. How these codes are actually displayed will
vary based on the browser software you are using.

This sentence is marked with bold and underline to show added text.

This sentence is marked with strikethrough and italic, indicating
text to be removed.

Daily Data Tracking History



H0549aa.....................................by COMMERCE AND HUMAN RESOURCES
WORKER'S COMPENSATION - Amends existing law to further clarify attorney's
fees when claims are made against a third party in worker's compensation
cases.
                                                                        
02/10    House intro - 1st rdg - to printing
02/11    Rpt prt - to Com/HuRes
03/02    Rpt out - to Gen Ord
03/03    Rpt out amen - to engros
03/06    Rpt engros - 1st rdg - to 2nd rdg as amen
03/07    2nd rdg - to 3rd rdg as amen
03/13    3rd rdg as amen - PASSED - 43-24-3
      AYES -- Alltus, Bell, Black, Bruneel, Callister, Campbell, Cheirrett,
      Clark, Crow, Deal, Denney, Ellsworth, Field(13), Field(20), Gagner,
      Geddes, Hadley, Hammond, Hansen(23), Hornbeck, Kempton, Kendell,
      Lake, Linford, Loertscher, Meyer, Montgomery, Mortensen, Moyle,
      Pearce, Pomeroy, Ridinger, Sali, Schaefer, Smylie, Stevenson, Stone,
      Taylor, Tilman, Wheeler, Wood, Zimmermann, Mr Speaker
      NAYS -- Barraclough, Bieter, Boe, Chase, Cuddy, Hansen(29), Henbest,
      Jaquet, Jones, Judd, Kellogg, Kunz, Mader, Marley, McKague, Pischner,
      Reynolds, Ringo, Robison, Sellman, Shepherd, Smith, Stoicheff, Trail
      Absent and excused -- Barrett, Gould, Moss
    Floor Sponsor - Lake
    Title apvd - to Senate
03/14    Senate intro - 1st rdg as amen - to Com/HuRes
03/17    Rpt out - rec d/p - to 2nd rdg as amen
03/20    2nd rdg - to 3rd rdg as amen
03/23    3rd rdg as amen - PASSED - 32-1-2
      AYES--Andreason, Boatright, Branch, Bunderson, Burtenshaw, Cameron,
      Crow, Danielson, Darrington, Davis, Deide, Dunklin, Geddes, Hawkins,
      Ingram, Ipsen, Keough, Lee, McLaughlin, Noh, Parry, Richardson,
      Riggs, Risch, Sandy, Schroeder, Sorensen, Stegner, Stennett, Thorne,
      Wheeler, Williams
      NAYS--Whitworth
      Absent and excused--Frasure, King-Barrutia
    Floor Sponsor - Davis
    Title apvd - to House
03/24    To enrol
03/27    Rpt enrol - Sp signed
03/28    Pres signed
03/29    To Governor
03/30    Governor signed
         Session Law Chapter 119
         Effective: 07/01/00

Bill Text


 H0549
                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-fifth Legislature                  Second Regular Session - 2000
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                               HOUSE BILL NO. 549, As Amended
                                                                        
                         BY COMMERCE AND HUMAN RESOURCES COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO WORKER'S COMPENSATION; AMENDING SECTION  72-223,  IDAHO  CODE,  TO
  3        FURTHER  CLARIFY  ATTORNEY  FEE OBLIGATIONS WHEN CLAIMS ARE MADE AGAINST A
  4        THIRD PARTY; AND PROVIDING AN EFFECTIVE DATE.
                                                                        
  5    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
  6        SECTION 1.  That Section 72-223, Idaho Code, be, and the  same  is  hereby
  7    amended to read as follows:
                                                                        
  8        72-223.  THIRD  PARTY  LIABILITY. (1) The right to compensation under this
  9    law shall not be affected by the fact that the injury, occupational disease or
 10    death is caused under circumstances creating in some  person  other  than  the
 11    employer  a  legal  liability  to  pay damages therefor, such person so liable
 12    being referred to as the third party. Such third party shall not include those
 13    employers described in section 72-216, Idaho Code, having under them  contrac-
 14    tors  or  subcontractors who have in fact complied with the provisions of sec-
 15    tion 72-301, Idaho Code; nor include the owner or lessee of premises, or other
 16    person who is virtually the proprietor or operator of the business there  car-
 17    ried  on,  but  who, by reason of there being an independent contractor or for
 18    any other reason, is not the direct employer of the workmen there employed.
 19        (2)  Action may be instituted against such third party by the employee, or
 20    in event compensation has been  claimed  and  awarded,  by  the  employee  and
 21    employer  jointly, in the employee's name, or, if the employee refuses to par-
 22    ticipate in such action, by the employer in the employee's name.
 23        (3)  If compensation has been claimed and  awarded,  the  employer  having
 24    paid  such  compensation or having become liable therefor, shall be subrogated
 25    to the rights of the employee, to recover against  such  third  party  to  the
 26    extent of the employer's compensation liability.
 27        (4)  On  any  recovery by the employee against a third party, the employer
 28    shall pay or have deducted from his subrogated portion thereof, a  proportion-
 29    ate share of the costs and attorney's fees incurred by the employee in obtain-
 30    ing  such  recovery Unless otherwise agreed, upon any recovery by the employee
 31    against the third party, the employer shall pay or have deducted from its sub-
 32    rogated portion thereof, a proportionate share of  the  costs  and  attorney's
 33    fees  incurred  by  the  employee in obtaining such recovery unless one (1) or
 34    more of the following circumstances exist:
 35        (a)  If prior to the date of a written  retention  agreement  between  the
 36        employee  and  an attorney, the employer has reached an agreement with the
 37        third party, in writing, acknowledging the third party's obligation to pay
 38        the subrogated interest;
 39        (b)  If the employee alleges or asserts a  position  in  the  third  party
 40        claim adverse to the employer, then the commission shall have jurisdiction
 41        to  determine  a  reasonable  fee,  if  any,  for services rendered to the
 42        employer;
 43        (c)  If there is a joint effort between the employee and employer to  pur-
                                                                        
                                           2
                                                                        
  1        sue a recovery from the third party, then the commission shall have juris-
  2        diction to determine a reasonable fee, if any, and apportion the costs and
  3        attorney's fees between the employee and employer.
  4        (5)  If  the  amount  recovered from the third party exceeds the amount of
  5    the subrogated portion payable to the employer for past compensation  benefits
  6    paid, then to the extent the employer has a future subrogated interest in that
  7    portion  of  the third party recovery paid to the employee, the employer shall
  8    receive a credit against its future liability for compensation benefits.  Such
  9    credit  shall  apply  as  future compensation benefits become payable, and the
 10    employer  shall  reimburse  the  employee  for  the  proportionate  share   of
 11    attorney's  fees  and  costs paid by the employee in obtaining that portion of
 12    the third party recovery corresponding to the  credit  claimed.  The  employer
 13    shall  not  be  required  to pay such attorney's fees and costs related to the
 14    future credit prior to the time the credit is claimed. However,  the  employer
 15    and  employee  may agree to different terms if approved by the industrial com-
 16    mission.
 17        (6)  If death results from the injury or occupational disease and  if  the
 18    employee  leaves no dependents entitled to benefits under this law, the surety
 19    shall have a right of action against the third party for  recovery  of  income
 20    benefits,  reasonable  expenses  of  medical  and  related services and burial
 21    expense actually paid by the surety and for recovery of amounts paid into  the
 22    industrial  special  indemnity account pursuant to section 72-420, Idaho Code,
 23    and such right of action shall be in addition to any cause of  action  of  the
 24    heirs or personal representatives of the deceased.
 25        (7)  All  rights and restrictions herein granted to the employer have pre-
 26    viously been intended to be, and are hereby expressly granted  to  the  indus-
 27    trial special indemnity account.
                                                                        
 28        SECTION  2.  This  act shall be in full force and effect on and after July
 29    1, 2000.

Amendment


 AH0549
                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-fifth Legislature                  Second Regular Session - 2000
                                                                        
                                                                        
                                                     Moved by    Lake                
                                                                        
                                                     Seconded by Ridinger            
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                              HOUSE AMENDMENT TO H.B. NO. 549
                                                                        
  1                                AMENDMENT TO SECTION 1
  2        On page 1 of the printed bill, in line 38, delete "a" and  insert:  "the";
  3    delete  lines  39  through  42; in line 43, delete "(c)" and insert: "(b)"; on
  4    page 2, in line 4, delete "(d)" and insert: "(c)".

Statement of Purpose / Fiscal Impact


                STATEMENT OF PURPOSE
                       RS 09697

The purpose of this legislation is to further clarify the 
circumstances and conditions under which an employer must 
pay a portion of the claimant's attorney's fees in workers' 
compensation third party liability cases.

Under current law the employer is required to pay a proportionate 
share of the claimant's costs and attorney's fees when there is a 
recovery from a third party regardless of whether: (a) the employer 
has already reached a written agreement with the third party, (b) 
the employer has already commenced action on their own behalf against 
the third party, or (c) there is a conflict of interest between the 
claimant's attorney and the employer regarding the case.

This bill will remove the requirement that the employer pay a 
proportionate share of the claimant's attorney's fees if any of the 
three conditions listed above exist. It will also allow for a joint 
effort between the employee's (injured worker's) attorney and the 
employer, and their attorney, to pursue a recovery from the third 
party, with the Industrial Commission determining a reasonable 
attorney fee, if appropriate, and apportioning the legal costs 
between  the employee and employer.

Under this legislation, employers will pay any claimant's attorney fees 
in third party cases when such fees are in fact earned by the claimant's 
attorney.

                         FISCAL NOTE
There will be no impact to the General Fund.

CONTACT:   Rep. Dennis Lake
Dawn Justice Idaho Association of Commerce and Industry
343-1849 

STATEMENT OF PURPOSE/FISCAL NOTE                        H 549