Being hurt in an accident at work can lead to severe injuries that require substantial medical treatment. The last thing you may think of is filing a third-party personal injury claim following a work-related injury in Lake Wylie, South Carolina. But, an attorney can help you with your case.
What Are the Third-Party Liability Laws in South Carolina?
Third-party liability happens when you suffer an injury due to the reckless acts or negligence of someone other than yourself. This type of liability means that you can sue not only the negligent party that caused your injury, but the applicable third parties, too.
How to Prove Third-Party Negligence When Filing for Workers’ Compensation in Lake Wylie, South Carolina
When seeking damages from a third party, you will need to prove that:
- The third party owed you a certain duty of care
- The duty of care was breached by the third party
- The omission or actions of the third party was the cause of your injury
- You suffered damages as a result of such actions or omissions
In some instances, you may be able to file a strict liability claim against a product manufacturer if you can prove that something you were handling in the workplace was defective.
Third-Party Liability in South Carolina
In some cases, your insurance company could compensate you for your medical related expenses if another party caused your injury, even if the other party is liable. If this happens, your insurance provider may try to recover the compensation it paid to you.
Who Can File a Third-Party Claim?
As the injured person, you may be keen to file both a third-party suit and a workers’ compensation claim if you are able to recover more under the theory of liability compared to the disability theory of loss of earning capacity.
If you do want to file a third-party lawsuit, you have one year from the date after the carrier accepts liability for payment to do so. You ought to file Form S-2 with the Workers’ Compensation Commission within 30 days of third-party action beginning. Your insurance provider will then have a lien over the total amount you recover.
It may be the case that your insurance company wishes to assert the claim against the third party, in which case, it will need to give you notice to the effect that if you fail to commence the third-party action, you assign cause of action to the insurance carrier. The right of action will then be assigned to the insurance provider 20 days after it has notified you, and if you do not address the action.
Once the assignment is done, the insurance provider has 90 days to notify you and the Workers’ Compensation Commission of the action. The right of action will then be assigned to you if the insurance carrier fails to commence action 30 days before the claim expires.
Insurance Provider-Filed Third-Party Claims
Under 42-1-560, the insurance company may want the right of action assigned to them for a number of reasons, such as:
- To avoid any costs of recovery by bringing an action that enforces its lien
- To retain control over the claim
- To protect reimbursement rights from an uninterested employee
In an insurance provider-led claim, the company has more control over the process as it has the opportunity to stay informed, select attorneys, and offer input during the discovery phase.
It’s worth noting that while your insurance company might avoid lien litigation when it files the third-party suit in your workers’ compensation in Lake Wylie, S.C. case, it may end up paying more attorney’s fees seeking third-party recovery. If the fees are set to exceed a third of the total value paid to you, the injured employee, the insurance company may pay more for the recovery than if you led the claim process.
Your Lien Over Third-Party Proceeds
If you bring the workers’ compensation claim, your insurance company will have a lien over your recovery. However, the lien will automatically be reduced by reasonable lawyer’s fees up to a third of the value payed on your claim at the time of judgment or settlement.
Interestingly, South Carolina has a “cram-down provision” which dictates that the Workers’ Compensation Commission could modify the amount of your insurance carrier’s lien over the third-party proceeds where your total of recoverable damages are greater than the judgment or settlement in the third-party claim.
The stronger the third-party’s defenses are, the more likely that lien will be justifiably reduced. If the lien drop applies, the lien will then be reduced by a formula that is determined by the proportion that the judgment or settlement bears to the total damages determined by the commission.
Your insurance company will not be bound by a settlement for anything under the total amount of the lien unless if gives written consent to such. The written consent gives the company the chance to review the strength of the third-party’s argument as well as the total damages. If the company doesn’t approve a settlement, you can petition the Workers’ Compensation Commission in Lake Wylie, South Carolina, for an order that the settlement is fair and reasonable.
The Important Points to Keep in Mind
If you are injured on the job and think you have a third-party case, be sure to investigate and determine the third party’s identity, the type of action you can bring and deadlines for filing claims as soon as you can.
Get in Touch with a South Carolina Workers’ Compensation Lawyer
If you are hurt at work as the result of a third party’s negligence, get in touch with a workers’ compensation attorney at Elrod Pope for a consultation and to determine your rights and help you with your claim. An experienced attorney can help you fight for the compensation you are eligible for in order to cover your medical bills, lost wages, and in some cases, pain and suffering. A third-party claim is a tricky process that our lawyers can navigate for you.
Thomas E. Pope is a Personal Injury, Wrongful Death, and Medical Malpractice Attorney who practices in Rock Hill, Lake Wylie, and Lancaster, SC. He graduated from the University of South Carolina School of Law, and has been practicing law for 31 years now. Thomas E. Pope believes in protecting the injured. Learn more about his experience here.