House Bill 549

AN ACT TO AMEND SECTION 71-3-71, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT AN EMPLOYER OR INSURER SHALL NOT BE REQUIRED TO INTERVENE IN ANY ACTION AGAINST ANY OTHER PARTY AT LAW RESPONSIBLE FOR THE INJURY OR DEATH OF AN EMPLOYEE, BUT IF THE EMPLOYER OR INSURER FAILS TO JOIN, THEY SHALL NOT BE ENTITLED TO ANY REPAYMENT OF THE AMOUNT THEY PAID AS COMPENSATION AND EXPENSES; TO PROVIDE THAT IF AN EMPLOYER IS FOUND TO BE NEGLIGENT, THE SUBROGATION LIEN SHALL BE REDUCED BY THE PERCENTAGE OF THE FAULT OF THE EMPLOYER; TO AMEND SECTION 85-5-7, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTION; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 71-3-71, Mississippi Code of 1972, is amended as follows:

71-3-71. The acceptance of compensation benefits from or the making of a claim for compensation against an employer or insurer for the injury or death of an employee shall not affect the right of the employee or his dependents to sue any other party at law for such injury or death, but the employer or his insurer shall be entitled to reasonable notice and opportunity to join in any such action or may intervene therein. * * *~~If such~~ An employer or insurer may join in such action * * *, ; however, if such employer or insurer does not join in such action, they shall not be entitled to repayment of the amount paid by them as compensation and medical expenses from the net proceeds of such action (after deducting the reasonable costs of collection) as hereinafter provided. If an employer is found to be negligent, the subrogation lien shall be reduced by the percentage of the fault of the employer.

The commencement of an action by an employee or his dependents (or legal representative) against a third party for damages by reason of the injury, or the adjustment of any such claim, shall not affect the right of the injured employee or his dependents (or legal representative) to recover compensation, but any amount recovered by the injured employee or his dependents (or legal representative) from a third party shall be applied as follows: reasonable costs of collection as approved and allowed by the court in which such action is pending, or by the commission of this state in case of settlement without suit, shall be deducted; the remainder, or so much thereof as is necessary, shall be used to discharge the legal liability of the employer or insurer; and any excess shall belong to the injured employee or his dependents. The employee or his dependents bringing suit against the third party must notify the employer or carrier within fifteen (15) days of the filing of such suit.

An employer or compensation insurer who shall have paid compensation benefits under this chapter for the injury or death of the employee shall have the right to maintain an action at law against any other party responsible for such injury or death, in the name of such injured employee or his beneficiaries, or in the name of such employer or insurer, or any or all of them. If reasonable notice and opportunity to be represented in such action by counsel shall have been given to the compensation beneficiary, all claims of such compensation beneficiary shall be determined in such action, as well as the claim of the employer or insurer. If recovery shall be had against such other party, by suit or otherwise, the compensation beneficiary shall be entitled to any amount recovered over and above the amount that the employer and insurer shall have paid or are liable for in compensation or other benefits, after deducting the reasonable costs of collection; however, if an employer is found to be negligent, the subrogation lien shall be reduced by the percentage of the fault of the employer.

In case of settlement of any action before the trial thereof, such settlement shall be subject to the approval of the court wherein such action is pending, and settlement before an action is brought shall be subject to the approval of the commission. Distribution of the portion belonging to the dependents shall be made among such dependents in the manner provided in this chapter.

In case of liability of the employer or insurer to make payment to the State Treasury under the Second Injury Fund provisions, if the injury or death creates a legal liability against a third party, the employer or insurer shall have a right of action against such third party for reimbursement of any sum so paid into the State Treasury, which right may be enforced in the action heretofore provided or by an independent action.

SECTION 2. Section 85-5-7, Mississippi Code of 1972, is amended as follows:

85-5-7. (1) As used in this section, "fault" means an act or omission of a person which is a proximate cause of injury or death to another person or persons, damages to property, tangible or intangible, or economic injury, including, but not limited to, negligence, malpractice, strict liability, absolute liability or failure to warn. Except as otherwise provided in this subsection (1), "fault" shall not include any tort which results from an act or omission committed with a specific wrongful intent. For any premises-liability action, as defined under Section 11-1-66.1(7), alleging injury as a result of the willful, wanton or intentional tortious conduct of a third party on commercial or other real property in the State of Mississippi, "fault" shall include any tort which results from an act or omission committed with a specific wrongful intent.

(2) Except as otherwise provided in subsection (4) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tortfeasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault. In assessing percentages of fault an employer and the employer's employee or a principal and the principal's agent shall be considered as one (1) defendant when the liability of such employer or principal has been caused by the wrongful or negligent act or omission of the employee or agent.

(3) Nothing in this section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly noted herein.

(4) Except as otherwise provided in Section 71-3-71, joint and several liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it. Except as otherwise provided in Section 71-3-71, any person held jointly and severally liable under this section shall have a right of contribution from his fellow defendants acting in concert.

(5) In actions involving joint tortfeasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault without regard to whether the joint tortfeasor is immune from damages. Fault allocated under this subsection to an immune tortfeasor or a tortfeasor whose liability is limited by law shall not be reallocated to any other tortfeasor; however, the subrogation lien shall be reduced by the percentage of an immune employer's negligence, as provided in Section 71-3-71.

(6) Nothing in this section shall be construed to create a cause of action. Nothing in this section shall be construed, in any way, to alter the immunity of any person.

SECTION 3. This act shall take effect and be in force from and after July 1, 2025.