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Struhs v. Protection Technolohies12/20/1999
nt for Wausau's subrogated interest because the United States indirectly paid worker's compensation premiums. We disagree. 32 C.F.R. § 536.5(b)(3) directs in part, " laims from the workmen's compensation carrier as subrogee or otherwise will not be considered payable where the United States has paid the premiums, directly or indirectly, for the workmen's compensation insurance."As noted above, the appropriate focus is on a particular federal agency, not the federal government as a whole. Because the Army did not pay Struhs' worker s compensation premiums, it has no immunity from paying his full damages. In addition, 32 C.F.R. Part 536 is merely advisory: it "contain general instructions and guidance" for processing claims against the Army which "apply to all claims unless other laws or regulations specify other procedures." 32 C.F.R. § 536.1(a) (emphasis added). The Army, as a third-party tortfeasor, was liable to Struhs under Idaho law, and federal law confirms its liability. See 28 U.S.C. § 2674.
Because the Army did not pay Struhs' worker's compensation premiums, the Army was not immune from third-party liability for Struhs' worker's compensation claims.
C. Wausau Was Not Required to File a Separate Notice of Tort Claim Against the Army to Preserve Its Right to Subrogation.
Struhs contends that, in order to assert its right to subrogation against the Army as a third-party tortfeasor, Wausau was required to file a separate notice of tort claim with the Army.
The Idaho Code allows an employer to bring a separate action against a third party who is responsible for injuring the employer's employee:
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.
I.C. § 72-223(2).
This scheme contemplates only one action against the third party: by the employee alone, by the employee and the employer jointly if worker's compensation has been paid, or by the employer alone if worker's compensation has been paid and the employee refuses to join the action. Even if the employer, as subrogee, brings the action to retrieve monies paid in worker's compensation benefits, the action is brought in the employee's name. I.C. § 72-223(2).
This Court has interpreted I.C. § 72-223(2) to mean that only one action may be brought against the third party:
There is but one cause of action under the statute, and one right to subrogation, and if the action is brought in the employee's name the employer and its surety are bound by estoppel to the results of that trial conducted by the employee.
Runcorn, 107 Idaho at 396, 690 P.2d at 331. See also Scott v. Agricultural Prods. Corp., 102 Idaho 147, 150, 627 P.2d 326, 329 (1981) (where injured employee brought suit against third party but was not joined by employer, employer was subrogated party in employee's action and could not bring further suit against third party). Accord Harms v. Williamson, 956 P.2d 649, 649, 653 (Colo. Ct. App. 1998) (to protect its right to reimbursement of benefits paid to injured employee, insurer was not required to file a separate notice of claim but could rely on notice of claim filed by employee, even where employee did not assert insurer's claim and where insurer did not join in lawsuit as separate party).
When Struhs brought an action against the Army, Wausau's right to subrogation was derivative of Struhs' recovery. Wausau was not required to file a separate tort claim against the Army to preserv
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