CHAPTER 89

An Act to amend and reenact 8§ 65-88 and 65-89 as amended, of the Code
of Virginia, and to further amend the Code by adding thereto, a
section numbered 65-39.1 relating, respectively, to subrogation of
employer to employee’s right, protection of employer when employee
sues third party and providing for apportioned sharing of the expenses
and attorneys’ fees in either such case. 'S 61]

Approved February 25, 1960

Be it enacted by the General Assembly of Virginia:

1. That §§ 65-38 and 65-39, as amended, of the Code of Virginia, be
amended and reenacted and that the Code be amended by adding thereto
a section numbered 65-39.1, as follows:

§ 65-38. The making of a lawful claim against an employer for com-
pensation under this Act for the injury or death of his employee
operate as an assignment to the employer of any right to recover damages
which the injured employee or his personal representative or other person
may have against any other party for such injury or death, and such em-
ployer shall be subrogated to any such right and may enforce, in his own
name or in the name of the injured employee or his personal representative,
the legal liability of such other party. The amount of compensation paid
by the employer or the amount of compensation to which the injured
employee or his dependents are entitled shall not be admissible as evidence
in any action brought to recover damages. Any amount collected by the
employer under the provisions of this section in excess of the amount paid
by the employer or for which he is liable shall be held by the employer
for the benefit of the injured employee or other person entitled thereto,
less a proportionate share of such amounts as are paid by the employer
for reasonable expenses and attorney’s fees as provided in § 65-39.1. No
compromise settlement shall be made by the employer in the exercise of
such right of subrogation without the approval of the Industrial Com-
mission and the injured employee or the personal representative or de-
pendents of the deceased employee being first had and obtained.

§ 65-39. In any such action by such employee, his personal repre-
sentative or other person against any person other than the employer,
the court shall, on petition or motion of the employer at any time prior to
verdict, ascertain the amount of compensation paid and expenses for
medical, surgical and hospital attention and supplies, and funeral ex-
penses, incurred by the employer under the provisions of this Act, and
deduct therefrom a proportionate share of such amounts as are paid by
the plaintiff for reasonable expenses and attorney’s fees as provided in
8 65-39.1; and in event of judgment against such person other than the
employer the court shall in its order require that the judgment debtor
pay such compensation and expenses of the employer, less said share of
expenses and attorney’s fees, so ascertained by the court out of the amount
of the judgment, so far as sufficient, and the balance, if any, to the judg-
ment creditor.

§ 65-89.1. In any such action, or claim for damages, by such employee,
his personal representative or other person against any person other
than the employer, and in any such action brought, or claim asserted, by
the employer under his right of subrogation provided for in § 65-88, if a
recovery is effected, either by judgment or voluntary settlement, the rea-
sonable expenses and reasonable attorneys’ fees of such claimants shah
be apportioned pro rata between the employer and the employee, his per-
sonal representative or other person, as their respective interests may
appear. |