Title 34, Chapter 9, Section 11.1
(a) When the injury or death for which compensation is payable under this chapter is caused under circumstances creating a legal liability against some person other than the employer, the injured employee or those to whom such employee's right of action survives at law may pursue the remedy by proper action in a court of competent jurisdiction against such other persons, except as precluded by Code Section 34-9-11 or otherwise.
(b) In the event an employee has a right of action against such
other person as contemplated in subsection (a) of this Code section
and the employer's liability under this chapter has been fully or
partially paid, then the employer or such employer's insurer shall
have a subrogation lien, not to exceed the actual amount of
compensation paid pursuant to this chapter, against such recovery.
The employer or insurer may intervene in any action to protect and
enforce such lien. However, the employer's or insurer's recovery
under this Code section shall be limited to the recovery of the
amount of disability benefits, death benefits, and medical expenses
paid under this chapter and shall only be recoverable if the injured
employee has been fully and completely compensated, taking into
consideration both the benefits received under this chapter and the
amount of the recovery in the third-party claim, for all economic
and noneconomic losses incurred as a result of the injury.
(c) Such action against such other person by the employee must be
instituted in all cases within the applicable statute of
limitations. If such action is not brought by the employee within
one year after the date of injury, then the employer or such
employer's insurer may but is not required to assert the employee's
cause of action in tort, either in its own name or in the name of
the employee. The employer or its insurer shall immediately notify
the employee of its assertion of such cause of action, and the
employee shall have a right to intervene. If after one year from
the date of injury the employee asserts his or her cause of action
in tort, then the employee shall immediately notify the employer or
its insurer of his or her assertion of such cause of action, and the
employer or its insurer shall have a right to intervene. In any
case, if the employer or insurer recovers more than the extent of
its lien, then the amount in excess thereof shall be paid over to
the employee. For purposes of this subsection only, "employee"
shall include not only the injured employee but also those persons
in whom the cause of action in tort rests or survives for injuries
to such employee.
(d) In the event of a recovery from such other person by the injured employee or those to whom such employee's right of action survives by judgment, settlement, or otherwise, the attorney representing such injured employee or those to whom such employee's right of action survives shall be entitled to a reasonable fee for services; provided, however, that if the employer or insurer has engaged another attorney to represent the employer or insurer in effecting recovery against such other person, then a court of competent jurisdiction shall upon application apportion the reasonable fee between the attorney for the injured employee and the attorney for the employer or insurer in proportion to services rendered. The provisions of Code Sections 15-19-14 and 15-19-15 shall apply.
(e) It is the express intent of the General Assembly that the
provisions of subsection (c) of this Code section be applied not
only prospectively but also retroactively to injuries occurring on
or after July 1, 1992.