Idaho Code

Idaho Code § 72-223 (2026)

Third party liability.

✓ current as of May 2026

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Third party liability.

(1) The right to compensation under this law shall not be affected by the fact that the injury, occupational disease or death is caused under circumstances creating in some person other than the employer a legal liability to pay damages therefor, such person so liable being referred to as the third party. Such third party shall not include those employers described in section 72-216, Idaho Code, having under them contractors or subcontractors who have in fact complied with the provisions of section 72-301, Idaho Code; nor include the owner or lessee of premises, or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor or for any other reason, is not the direct employer of the workmen there employed.

(2) Action may be instituted against such third party by the employee, or in event compensation has been claimed and awarded, by the employee and employer jointly, in the employee’s name, or, if the employee refuses to participate in such action, by the employer in the employee’s name.

(3) If compensation has been claimed and awarded, the employer having paid such compensation or having become liable therefor, shall be subrogated to the rights of the employee, to recover against such third party to the extent of the employer’s compensation liability.

(4) Unless otherwise agreed, upon any recovery by the employee against the third party, the employer shall pay or have deducted from its subrogated portion thereof, a proportionate share of the costs and attorney’s fees incurred by the employee in obtaining such recovery unless one (1) or more of the following circumstances exist:

(a) If prior to the date of a written retention agreement between the employee and an attorney, the employer has reached an agreement with the third party, in writing, agreeing to pay in full the employer’s subrogated interest;

(b) If the employee alleges or asserts a position in the third party claim adverse to the employer, then the commission shall have jurisdiction to determine a reasonable fee, if any, for services rendered to the employer;

(c) If there is a joint effort between the employee and employer to pursue a recovery from the third party, then the commission shall have jurisdiction to determine a reasonable fee, if any, and apportion the costs and attorney’s fees between the employee and employer.

(5) If the amount recovered from the third party exceeds the amount of the subrogated portion payable to the employer for past compensation benefits paid, then to the extent the employer has a future subrogated interest in that portion of the third party recovery paid to the employee, the employer shall receive a credit against its future liability for compensation benefits. Such credit shall apply as future compensation benefits become payable, and the employer shall reimburse the employee for the proportionate share of attorney’s fees and costs paid by the employee in obtaining that portion of the third party recovery corresponding to the credit claimed. The employer shall not be required to pay such attorney’s fees and costs related to the future credit prior to the time the credit is claimed. However, the employer and employee may agree to different terms if approved by the industrial commission.

(6) If death results from the injury or occupational disease and if the employee leaves no dependents entitled to benefits under this law, the surety shall have a right of action against the third party for recovery of income benefits, reasonable expenses of medical and related services and burial expense actually paid by the surety and for recovery of amounts paid into the industrial special indemnity account pursuant to section 72-420, Idaho Code, and such right of action shall be in addition to any cause of action of the heirs or personal representatives of the deceased.

(7) All rights and restrictions herein granted to the employer have previously been intended to be, and are hereby expressly granted to the industrial special indemnity account.

Notes of Decisions

Cited in 76 cases (9 in the last 5 years), 1975–2024 · leading case: Robison v. Bateman-Hall, Inc., 76 P.3d 951 (Idaho 2003).

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Robison v. Bateman-Hall, Inc., 76 P.3d 951 (Idaho 2003). · cites it 188× “Fred Meyer and Bateman-Hall responded with a motion for summary judgment, stating the claims against Fred Meyer and Bateman-Hall should be dismissed since both parties were immune from third-party tort liability pursuant to Idaho Code § 72-223 . The district judge allowed the…”

Venters v. Sorrento Delaware, Inc., 108 P.3d 392 (Idaho 2005). · cites it 45× “Venter’s statutory employer precluded it from civil liability under the exclusive remedy provisions of Idaho’s Worker’s Compensation Act (the Act). The district court entered summary judgment in favor of Montierth on both bases, with the court specifically finding that the…”

Fuhriman v. State, 153 P.3d 480 (Idaho 2007). · cites it 40× “Even if all the allegations in Appellants' complaint are true that the State is liable in tort for the death and injury of several construction workers the State raises the argument and supporting facts that it is protected by I.C. § 72-223 because it is a statutory…”

Cherry v. Coregis Ins., 204 P.3d 522 (Idaho 2009). · cites it 56× “[3] Idaho Code § 72-223 (3) provides: "If [worker's] compensation has been claimed and awarded, the employer having paid such compensation or having become liable therefor, shall be subrogated to the rights of the employee, to recover against such third party to the extent of…”

Kolar v. Cassia Cnty. Idaho, 127 P.3d 962 (Idaho 2005). · cites it 36× “Idaho Code § 72-223 (3) grants an injured worker’s employer a right of subrogation in the employee’s rights against the third party, where that employer has compensated its injured employee for acts committed by a third party. Because the Insurance Fund’s right to subrogation…”

Smith v. Excel Fabrication, LLC, 535 P.3d 1098 (Idaho 2023). · cites it 49× “Idaho Code § 72-223 (1). Our prior decisions concerning whether third parties are immune from suit by employees of their contractors or subcontractors remain good law.”

Walker v. Hensley Trucking, 691 P.2d 1187 (Idaho 1984). · cites it 38× “[1] The Industrial Commission, after conducting a hearing in which it heard evidence concerning the extent to which Argonaut independently pursued its subrogation claim against the third party's insurance carrier Safeco, made a factual finding that the surety was able to recover…”

Peone v. Regulus Stud Mills, Inc., 744 P.2d 102 (Idaho 1987). · cites it 28× “Idaho Code § 72-223 specifically contemplates that employers of independent contractors may be legally liable in addition to the direct employer's workmen's compensation liability.”

Izaguirre v. R & L Carriers Shared Servs., LLC, 308 P.3d 929 (Idaho 2013). · cites it 41× “In that motion, the Respondents argued: The potential limitation on R & L Carriers’ right of subrogation raised by Claimant’s contention requires that the Commission interpret Idaho law to determine issues including: (1) the threshold question of whether the [Release Agreement]…”

Struhs v. Prot. Tech., Inc., 992 P.2d 164 (Idaho 1999). · cites it 28× “I.C. § 72-223. The statute provides, “If compensation has been claimed and awarded, the employer having paid such compensation or having become liable therefor, shall be subrogated to the rights of the employee, to recover against such third party to the extent of the employer’s…”

Kelly v. TRC Fabrication LLC, 487 P.3d 723 (Idaho 2021). · cites it 16× “See I.C. § 72-223. “Even if an injured employee is entitled to compensation under the Worker’s Compensation Law, a third party may still have legal liability to the injured person.”

Wilder v. Redd, 721 P.2d 1240 (Idaho 1986). · cites it 40× “See I.C. § 72-223. Under I.C. § 72-223, injured employees may receive workmen's compensation benefits and thereafter bring negligence actions against third party tortfeasors.”

Show all 76 citing cases →

— Idaho Code § 72-223(1) — 22 cases

Robison v. Bateman-Hall, Inc., 76 P.3d 951 (Idaho 2003). “Fred Meyer and Bateman-Hall responded with a motion for summary judgment, stating the claims against Fred Meyer and Bateman-Hall should be dismissed since both parties were immune from third-party tort liability pursuant to Idaho Code § 72-223 . The district judge allowed the…”

Smith v. Excel Fabrication, LLC, 535 P.3d 1098 (Idaho 2023). “Idaho Code § 72-223 (1). Our prior decisions concerning whether third parties are immune from suit by employees of their contractors or subcontractors remain good law.”

Kolar v. Cassia Cnty. Idaho, 127 P.3d 962 (Idaho 2005). “Idaho Code § 72-223 (3) grants an injured worker’s employer a right of subrogation in the employee’s rights against the third party, where that employer has compensated its injured employee for acts committed by a third party. Because the Insurance Fund’s right to subrogation…”

Kelly v. TRC Fabrication LLC, 487 P.3d 723 (Idaho 2021). “See I.C. § 72-223. “Even if an injured employee is entitled to compensation under the Worker’s Compensation Law, a third party may still have legal liability to the injured person.”

Fuhriman v. State, 153 P.3d 480 (Idaho 2007). “Even if all the allegations in Appellants' complaint are true that the State is liable in tort for the death and injury of several construction workers the State raises the argument and supporting facts that it is protected by I.C. § 72-223 because it is a statutory…”

— Idaho Code § 72-223(2) — 4 cases

Struhs v. Prot. Tech., Inc., 992 P.2d 164 (Idaho 1999). “I.C. § 72-223. The statute provides, “If compensation has been claimed and awarded, the employer having paid such compensation or having become liable therefor, shall be subrogated to the rights of the employee, to recover against such third party to the extent of the employer’s…”

Runcorn v. Shearer Lumber Prods., Inc., 690 P.2d 324 (Idaho 1984).

State Ins. Fund v. Jarolimek, 75 P.3d 191 (Idaho 2003).

— Idaho Code § 72-223(3) — 22 cases

Cherry v. Coregis Ins., 204 P.3d 522 (Idaho 2009). “[3] Idaho Code § 72-223 (3) provides: "If [worker's] compensation has been claimed and awarded, the employer having paid such compensation or having become liable therefor, shall be subrogated to the rights of the employee, to recover against such third party to the extent of…”

Pocatello Indus. Park Co. v. Steel West, Inc., 621 P.2d 399 (Idaho 1980).

Izaguirre v. R & L Carriers Shared Servs., LLC, 308 P.3d 929 (Idaho 2013). “In that motion, the Respondents argued: The potential limitation on R & L Carriers’ right of subrogation raised by Claimant’s contention requires that the Commission interpret Idaho law to determine issues including: (1) the threshold question of whether the [Release Agreement]…”

Alcala v. Verbruggen Palletizing Solutions, Inc., 531 P.3d 1085 (Idaho 2023).

— Idaho Code § 72-223(4) — 6 cases

Walker v. Hensley Trucking, 691 P.2d 1187 (Idaho 1984). “[1] The Industrial Commission, after conducting a hearing in which it heard evidence concerning the extent to which Argonaut independently pursued its subrogation claim against the third party's insurance carrier Safeco, made a factual finding that the surety was able to recover…”

Lumbermens Mut. Cas. Co. v. Egbert, 873 P.2d 1332 (Idaho 1994).

Cameron v. Minidoka Cnty. High. Dist., 874 P.2d 1108 (Idaho 1994).

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