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Struhs v. Protection Technolohies12/20/1999
implicitly prohibits legislative modification of common law actions." Jones v. State Bd. of Medicine, 97 Idaho 859, 864, 555 P.2d 399, 404 (1976).
Struhs' argument is without merit. Struhs was entitled to a full tort recovery from the Army. He voluntarily chose to accept a settlement that, according to him, did not include payment for his full tort damages. He and the Army voluntarily characterized the settlement as "general damages."
Wausau, as noted above, is not bound by the unilateral action of Struhs and the Army. We find no prejudice to Struhs' rights.
In his reply brief, Struhs also argues that I.C. ยง 72-223 is so ambiguous as to deprive him of due process of law under the U.S. and Idaho Constitutions. Because Struhs raised this issue only in his reply brief, this Court will not address it. Hernandez v. State, 127 Idaho 685, 687, 905 P.2d 86, 88 (1995); State v. Raudebaugh, 124 Idaho 758, 763, 864 P.2d 596, 601 (1993).
F. Wausau Had No Duty to Mitigate Damages by Pursuing Its Own Third-Party Claim Against the Army.
Struhs asserts that, even if Wausau had a right of reimbursement from the Struhs-Army settlement, it was required to mitigate damages by pursuing a direct suit against the Army. The Industrial Commission concluded that Wausau had no such duty.
Subrogation in worker's compensation is governed by statute. Wausau was entitled to pursue its subrogation interest by asserting an interest in Struhs' settlement. No provisions of the Worker's Compensation title require an employer to pursue its own action against a third-party tortfeasor with whom an employee has reached a separate settlement. We decline to impose a duty to mitigate when the legislature has not seen fit to do so.
IV. CONCLUSION
Wausau is entitled to subrogation from the third-party settlement Struhs reached with the Army. The order of the Industrial Commission is affirmed. Costs to respondents.
Chief Justice TROUT, Justices SILAK, SCHROEDER, and WALTERS CONCUR.
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