Chap. 369.—An ACT to amend and re-enact section 12 of the Virginia Work-
men’s Compensation Act, which became a law March 21, 1918, as last amended
by an act approved March 24, 1932. [H B 241]

Approved March 28, 1936

1. Be it enacted by the General Assembly of Virginia, That section
twelve of the Virginia Workmen’s Compensation Act, which became
a law on March twenty-first, nineteen hundred and eighteen, as last
amended by an act approved March twentieth, nineteen hundred and
thirty-two, be amended and re-enacted so as to read as follows:

Section 12. The rights and remedies herein granted to an em-
ployee where he and his employer have accepted the provisions of this
act respectively to pay and accept compensation on account of per-
sonal injury or death by accident shall exclude all other rights and
remedies of such employee, his personal representative, parents, de-
pendents or next of kin, at common law or otherwise on account of
such injury, loss of service or death.

The making of a lawful claim against an employer for compensa-
tion under this act for the injury or death of his employee shall
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 employer 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, but 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 such amounts as are paid by the employer for reasonable expenses
and attorney’s fees. Provided, that no compromise settlement shall
be made by the employer or insurance carrier in the exercise of such
right of subrogation without the approval of the Industrial Commis-
sion and the injured employee or the personal representative or de-
pendents of the deceased employee being first had and obtained.

Where any employer is insured against liability for compensation
with any insurance carrier, and such insurance carrier shall have paid
any compensation for which the employer is liable or shall have as-
sumed the liability of the employer therefor, it shall be subrogated to
all the rights and duties of the employer, and may enforce any such
rights in its own name or in the name of the injured employee or his
or her personal representative; provided, however, nothing herein
shall be construed as conferring upon insurance carriers any other or
further rights than those existing in the employer at the time of the
injury to his employee, anything in the policy of insurance to the
contrary notwithstanding.

In any such action by such employee, his personal representative
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 ver-
dict, ascertain the amount of expenses for medical, surgical and hos-
pital attention and supplies, and funeral expenses, incurred by the
employer under the provisions of this act, 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 expenses of the em-
ployer so ascertained by the court out of the amount of the judgment,
so far as sufficient, and the balance, if any, to the judgment creditor.

Nothing in this act contained shall be construed to make, for the
purposes of this act, the employees of an independent contractor the
employees of the person or corporation employing or contracting with
such independent contractor.