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Workers' Compensation Subrogation In All 50 States - 5th Edition - Hardcover
Workers' Compensation Subrogation In All 50 States - 5th Edition - Electronic
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§ 11.34 North Carolina
§ 11.34[1] Statutory Subrogation Rights
Subrogation rights of workers' compensation carriers are set
forth in § 97-10.2 of the North Carolina statutes. Within the first
twelve months after an injury, the worker has the exclusive right to
bring a third-party action.1 After twelve months, either the employee
or the employer has a right to bring a third-party action.2 The party
who brings suit has the exclusive right to bring such proceedings or
make settlement with the third party and release the third party. If the
employee has not filed suit within that twelve month period, and if
the employer has filed with the Industrial Commission a written
admission of liability for the benefits paid to the employee, then the
employee or the employer has a joint right to proceed to enforce the
liability of the third party. However, within 60 days before the
expiration of the applicable statute of limitations, if neither the
employee nor the employer have settled with or instituted suit against
the third party, all such rights shall revert to the employee.3
In North Carolina, compensation benefits paid are admissible in
evidence in any third-party proceeding and the jury is instructed that
this amount is to be deducted from any damages awarded to the
plaintiff. If the third party alleges negligence of the employer, the
jury will answer a jury question as to the negligence of the employer.
If the jury finds negligence of the employer joined and concurred
with that of the third party, the court will reduce the damages against
the third party by the amount of the compensation lien and the carrier
will not be entitled to subrogation.
North Carolina is one of only four states which follow the doctrine
of pure contributory negligence rather than comparative negligence.
This means that even 1% of negligence on the injured worker will
result in no recovery for the worker or the subrogated carrier. See
§ 11.34[2] below for information on how employer negligence and
the North Carolina doctrine of last clear chance can interact to affect
a carrier's rights of subrogation and reimbursement.
§ 11.34 North Carolina
§ 11.34[1] Statutory Subrogation Rights
§ 11.34[2] Third Parties
§ 11.34[3] Allocation of Third-Party Recovery
§ 11.34[4] Attorneys' Fees and Costs
§ 11.34[5] Credit/Advance
§ 11.34[6] Related Subrogation Issues
§ 11.34[7] Statutes of Limitations
§ 11.34[8] Workers' Compensation in North Carolina
Gary Wickert is an insurance trial lawyer and is regarded as one of the world's leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and is a national and international speaker and lecturer on subrogation and motivational topics. Mr. Wickert is also a politician in Wisconsin, serving his fourth term as Town Supervisor in the Township of Cedarburg. After 15 years as the youngest managing partner in the history of the 30-lawyer Houston law firm of Hughes, Watters & Askanase, L.L.P., he returned to his native Wisconsin in 1998 and co-founded the firm of Matthiesen, Wickert & Lehrer, S.C. He oversees a National Recovery Program which includes a network of nearly 300 contracted subrogation law firms in all 50 states, Mexico, Canada and the United Kingdom and boasts recoveries of more than $500 million in recoveries and credits for more than 250 insurance companies. Gary Wickert is also a commercial fiction author and his latest political thriller, Dark Redemption (Tudor Publishers), is available on Amazon.com.
Licensed in both Texas and Wisconsin, Mr. Wickert is double board-certified in both personal injury law and civil trial law by the Texas Board of Legal Specialization. He is also nationally certified as a Civil Trial Advocate by the National Board of Trial Advocacy (NBTA), for whom he has both written and graded the product liability questions contained on the NBTA national certification exam taken by trial lawyers around the country. For nearly twenty-five years, he has also served as an expert witness on subrogation and insurance related issues and has been consulted by insurance carriers, lawyers, and legislative bodies from several states. He is a licensed arbitrator and has attended more than 750 mediations in more than 30 different states. He is one of only a few lawyers to have ever represented a client before the United States Supreme Court on a subrogation issue, and was named one of Law & Politics and Milwaukee Super Lawyers magazine's Super Lawyers for 2005, 2006, and 2008. For a complete resume on Gary L. Wickert, see Appendix A-13 of this book.
