On November 11, 2008 our client received a workers’ compensation claim from their insured, when their employee was killed by a bucket on his John Deere loader. Our client notified us on November 12, 2008 and we promptly retained an engineer that day. The engineer immediately inspected the loader in the field where the accident occurred, and it was determined that the warning labels were deficient and that a “guard” or a shaft to drop a pin was lacking, creating an apparent defective design.
Our client’s final workers’ compensation lien consisted of a $178,500.00 loss as well as $67,636.78 in expenses.
Per GA statute, a 3rd party action must be brought by the employee (or their descendants) within one year of the date of loss, and if they fail to do so, the carrier may then file its own action. In this case, the employee’s estate opted not to pursue a 3rd party case within the first year. At the start of the second year, with our client’s approval, we retained legal counsel to file a lawsuit against John Deere. Knowing that the inclusion of the estate’s causes of action would result in significant damages, in addition to our client’s workers compensation lien, we approached the estate (employee’s wife) which agreed to join in the lawsuit, as co-plaintiffs. As a condition of joining the lawsuit, an apportionment agreement was agreed to among employee’s estate, our client and counsel, regarding the sharing of 3rd party proceeds, if any.
After lengthy discovery, formal mediation and over a year of settlement discussions with John Deere, which has a reputation for being a challenging defendant, the 3rd party case settled for a total of $270,000.00. Our client’s net recovery was $138,000.00, after attorney fees.
What is especially noteworthy about this recovery is that GA has a very onerous Made-Whole statute in which the employee is required to be “made whole” from any 3rd party sources, before the insurer can recover any portion of it’s workers compensation lien. This product-caused recovery resulted from all parties acting quickly to investigate and preserve evidence together with our subsequent apportionment agreement with the employee’s estate (which averted the hurdles of the Made-Whole statute).
