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Marin v. DCS Sanitation6/3/1999
ry that would result from granting claimant's request that respondents make an additional contribution toward her attorney fees and costs in the third-party litigation. These attorney fees and costs have been paid once and will not be paid again. That payment has been made by claimant except for a pro rata contribution by respondents based on the amount of workers' compensation benefits recouped from the third-party recovery up to a particular point in time. Not taken into account in that calculation were the future workers' compensation obligations of which respondents will be relieved as a result of the third-party recovery.
Manifestly, if respondents are not required to contribute a proportionate share of the attorney fees and costs incurred in obtaining the portion of the third-party recovery that will be credited against their future workers' compensation obligations, the claimant will have paid a disproportionate share of those costs. That was recognized in Ewing v. Allied Construction Services, ___ N.W.2d ___, ___ (Iowa 1999), where this court determined that it is the obligation of the employer or insurer to contribute toward the cost of bringing the third-party action in proportion to the benefits received therefrom. The application of that rule to the present case requires that we affirm the judgment of the district court.
Although Ewing approved a rule in which the employer or insurance carrier's liability to contribute to the cost of the third-party recovery accrued over time as the future workers' compensation benefits were accruing, a stipulation of the parties in the present case authorized an order for a lump sum payment of an agreed amount should the claimant prevail on the merits. The district court's decision embraced that stipulation and is affirmed.
AFFIRMED.
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