A. Except as provided in subsection B, in any action, or claim for damages, by an employee, his personal representative or other person against any person other than the employer, and in any such action brought, or claim asserted, by the employer under his right of subrogation provided for in § 65.2-309, if a recovery is effected, either by judgment or voluntary settlement, the reasonable expenses and reasonable attorney's fees of such claimants shall be apportioned pro rata between the employer and the employee, his personal representative or other person, as their respective interests may appear.
B. If the employer is required to institute an action against any party to recover some or all of its lien pursuant to subsection D of § 65.2-309, the employer shall not be required to pay any share of the reasonable expenses and reasonable attorney's fees associated with that portion of its lien that is not preserved by the employee, his personal representative or other person.
Code 1950, § 65-39.1; 1960, c. 89; 1968, c. 660, § 65.1-43; 1991, c. 355; 2004, cc. 914, 941.
Notes of Decisions
Naa Lamiley Williams v. Capital Hospice & Companion Prop. & Cas. Ins. Co., 783 S.E.2d 67 (Va. Ct. App. 2016).
· cites it 10× “Code § 65.2-311 provides: in any action, or claim for damages, by an employee, his personal representative or other person against any person other than the employer, and in any such action brought, or claim asserted, by the employer under his right of subrogation provided for…”
Wood v. Caudle-Hyatt, Inc., 444 S.E.2d 3 (Va. Ct. App. 1994).
· cites it 6× “An employer who benefits from an employee’s third-party tort settlement, by recouping or being relieved of paying workers’ compensation benefits, is required by Code § 65.2-311 to pay its pro rata share of a claimant’s reasonable expenses and attorney’s fees in effecting the…”
Hawkins v. Com./southside Va. Training, 497 S.E.2d 839 (Va. 1998).
· cites it 5× “” Code § 65.2-311 apportions attorney’s fees and expenses between the employer and employee in an action under § 65.”
Circuit City Stores, Inc. v. Bower, 413 S.E.2d 55 (Va. 1992).
· cites it 4× “1-43 (now Code § 65.2-311), required the employer to pay a certain portion of the attorney's fees and expenses incurred by Wanda C.”
Henry's Wrecker Serv. Co. v. Smoot, 545 S.E.2d 551 (Va. Ct. App. 2001).
· cites it 3× “Code §§ 65.2-311 and -313 provide for the allocation between employer and employee of reasonable costs and fees incurred incident to a third-party recovery.”
Henrico Cnty. Sch. Bd. v. Bohle, 421 S.E.2d 8 (Va. Ct. App. 1992).
· cites it 4× “[2] Now Code § 65.2-311. [3] Assuming this method of offset was correct, a matter we address in the next section.”
Skelly v. Hertz Equip. Rental Corp., 547 S.E.2d 551 (Va. Ct. App. 2001).
· cites it 2× “Thereafter, they sought from Hertz reimbursement of pro rata attorney’s fees and costs incurred in the third-party litigation, pursuant to Code § 65.2-311. In October and November, 1996, Mr.”
Michigan Mut. Ins. v. Smoot, 128 F. Supp. 2d 917 (E.D. Va. 2000).
“incurred by the employer under the provisions of this title and deduct therefrom a proportionate share of such amounts as are paid by the carrier for reasonable expenses and attorney’s fees as provided in § 65.2-311; and in the event of judgment against such person other than…”
Liberty Mut. Ins. v. Fisher, 557 S.E.2d 209 (Va. 2002).
“mployer at any time prior to verdict, ascertain the amount of compensation paid and expenses for medical, surgical and hospital attention and supplies, and funeral expenses incurred by the employer under the provisions of this title and deduct therefrom a proportionate share of…”
Michigan Mut. Ins. v. Smoot, 129 F. Supp. 2d 912 (E.D. Va. 2000).
“incurred by the employer under the provisions of this title and deduct therefrom a proportionate share of such amounts as are paid by the carrier for reasonable expenses and attorney’s fees as provided in § 65.2-311; and in the event of judgment against such person other than…”
Willie Carl Emberton, Sr. v. White Supply & Glass Co., 598 S.E.2d 772 (Va. Ct. App. 2004).
“In ordering payments under this section, the Commission shall take into account any apportionment made pursuant to § 65.2-311. For the purposes of this section, “entitlement” means compensation and expenses for medical, surgical and hospital attention and funeral expenses to…”
Va. Code Ann. § 65.2-311(A): 2 cases
Va. Code Ann. § 65.2-311(B): 1 case
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