Kansas Decision Reveals Danger Of Not Intervening In Workers’ Compensation Third-Party Litigation

The Kansas Court of Appeals is holding class on why it is important to have subrogation counsel in workers’ compensation subrogation third-party cases – even in states which are favorable to carriers.

In the 2020 case of Hawkins v. Southwest Kansas Co-op Service, 2020 WL 1649867 (Kan. App. 2020), Hawkins was injured on the job and sued three defendants, (1) JLG Industries, Inc., (2) United Rentals Northwest, Inc., and (3) Western Steel and Automation, Inc.

In 2008, Hawkins settled with Western Steel for $925,000 and the trial court approved a designation of the entire amount for the wife’s loss of consortium. There was no apportionment of fault.

In 2011, Hawkins settled with JLG and received annual payments of $75,000 for 20 years, totaling $1.5 million. There was no apportionment of fault. Payments were received from 2012 through at least 2016.

In 2011, the case against United Rentals went to trial and the jury found no fault on Hawkins, JLG, or United Rentals, but found Western Steel to be 75% at fault and the employer, Southwest Kansas Co-op, to be 25% at fault. The jury determined the damages to be $4,081,916.50.