1. 1. Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover. Any recovery by the employer against such third person shall be apportioned between the employer and employee or his dependents using the provisions of subsections 2 and 3 of this section.
2. 2. When a third person is liable for the death of an employee and compensation is paid or payable under this chapter, and recovery is had by a dependent under this chapter either by judgment or settlement for the wrongful death of the employee, the employer shall receive or have credit for sums paid or payable under this chapter to any of the dependents of the deceased employee to the extent of the settlement or recovery by such dependents for the wrongful death. Recovery by the employer and credit for future installments shall be computed using the provisions of subsection 3 of this section relating to comparative fault of the employee.

3. 3. Whenever recovery against the third person is effected by the employee or his dependents, the employer shall pay from his share of the recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee. After the expenses and attorney fee have been paid, the balance of the recovery shall be apportioned between the employer and the employee or his dependents in the same ratio that the amount due the employer bears to the total amount recovered if there is no finding of comparative fault on the part of the employee, or the total damages determined by the trier of fact if there is a finding of comparative fault on the part of the employee. Notwithstanding the foregoing provision, the balance of the recovery may be divided between the employer and the employee or his dependents as they may otherwise agree. Any part of the recovery found to be due to the employer, the employee or his dependents shall be paid forthwith and any part of the recovery paid to the employee or his dependents under this section shall be treated by them as an advance payment by the employer on account of any future installments of compensation in the following manner:

   1. (1) The total amount paid to the employee or his dependents shall be treated as an advance payment if there is no finding of comparative fault on the part of the employee; or
   2. (2) A percentage of the amount paid to the employee or his dependents equal to the percentage of fault assessed to the third person from whom recovery is made shall be treated as an advance payment if there is a finding of comparative fault on the part of the employee.
4. 4. In any case in which an injured employee has been paid benefits from the second injury fund as provided in subsection 3 of section 287.141, and recovery is had against the third party liable to the employee for the injury, the second injury fund shall be subrogated to the rights of the employee against said third party to the extent of the payments made to him from such fund, subject to provisions of subsections 2 and 3 of this section.
5. 5. No construction design professional who is retained to perform professional services on a construction project or any employee of a construction design professional who is assisting or representing the construction design professional in the performance of professional services on the site of the construction project shall be liable for any injury resulting from the employer's failure to comply with safety standards on a construction project for which compensation is recoverable under the workers' compensation law, unless responsibility for safety practices is specifically assumed by contract. The immunity provided by this subsection to any construction design professional shall not apply to the negligent preparation of design plans or specifications.
6. 6. Any provision in any contract or subcontract, where one party is an employer in the construction group of code classifications, which purports to waive subrogation rights provided under this section in anticipation of a future injury or death is hereby declared against public policy and void. Each contract of insurance for workers' compensation shall require the insurer to diligently pursue all subrogation rights of the employer and shall require the employer to fully cooperate with the insurer in pursuing such recoveries, except that the employer may enter into compromise agreements with an insurer in lieu of the insurer pursuing subrogation against another party. The amount of any subrogation recovery by an insurer shall be credited against the amount of the actual paid losses in the determination of such employer's experience modification factor within forty-five days of the collection of such amount.

(RSMo 1939 § 3699, A.L. 1955 p. 597, A.L. 1957 p. 560, A.L. 1990 S.B. 751, A.L. 1993 S.B. 251)

Prior revision: 1929 § 3309

(1962) Employers and their workmen's compensation insurer could not recover, on theory of subrogation, amount of compensation paid injured employee from third party tort-feasor and his liability insurer who had settled with employee for amount in excess of compensation paid. O'Hanlon Reports, Inc. v. Needles (A.), 360 S.W.2d 382.

(1965) In an action to compel workmen's compensation carrier for plaintiff's employer to pay to plaintiff one-half of the trial expenses incurred by plaintiff in the trial of plaintiff's action instituted against a third party, held this section does not provide for the sharing of expenses in the event the third party action is unsuccessful and there is no basis in workmen's compensation act for plaintiff's action. Veninga v. Liberty Mutual Insurance Co. (A.), 388 S.W.2d 535.

(1965) Employer and workmen's compensation insurer had right to intervene under this section in employee's action for injuries suffered while acting within scope of employment, notwithstanding possible prejudice of injection of insurance into trial. State v. Luten (A.), 390 S.W.2d 931.

(1967) The second injury fund is subrogated to the rights of the employee and entitled to credit on the awards of a portion of the recovery by the employee from the third party. Cole v. Morris (Mo.), 409 S.W.2d 668.

(1967) The employer's right against the third party tort-feasor is wholly derivative, is conditional upon the existence of a cause of action in the injured employee against the tort-feasor, and as the employer has no separate cause of action for the subrogation claim, a judgment against the employee would defeat any claimed right of subrogation. State v. Holt (A.), 411 S.W.2d 249.

(1967) Where widow cooperated and testified in action brought by compensation carrier against third party, widow had not “effected” recovery within statutory provision. Maryland Casualty Co. v. General Electric Co. (Mo.), 418 S.W.2d 115.

(1968) The workmen's compensation law is not supplemental of the common law, but is wholly substitutional, and if the accident is not covered by the compensation law, the common law action remains unaffected. Wilson v. Hungate (Mo.), 434 S.W.2d 580.

(1973) Formula for division of proceeds of suit against third party instituted by workmen's compensation claimant established by court. Ruediger v. Kollmeyer Brothers Service (Mo.), 501 S.W.2d 56.

(1995) When calculating the amount of recovery under subsection 3 of this section, medical expenses are included. McCormack v. Stewart Enterprises, Inc., 916 S.W.2d 219 (Mo.App.W.D.).

(1998) Case management group retained by employer for the purpose of directing and monitoring treatment of employer's injured employees was not a third person against whom separate tort claims may be brought because group's alleged acts were performed for the purpose of discharging employer's duty to provide treatment to employer's injured employees. Burns v. Employer Health Services, Inc., 976 S.W.2d 639 (W.D.Mo.).