Montana: Oklahoma Employer May Not Intervene to Recover its Lien Until Worker is Made Whole

Relying upon § 90 of the Restatement (Second) Conflict of Laws, a divided Supreme Court of Montana held that because of the strong public policy against subrogation in the state, courts in Montana will not entertain actions involving workers’ compensation subrogation prior to an injured worker’s full recovery of his or her damages, even where they would be allowed under the state where the injured worker resides. Here the worker, a resident of Oklahoma, was seriously injured while crossing an intersection in Billings, Montana, when he was struck by a vehicle driven by an employee of the defendant. He sought workers’ compensation benefits in Oklahoma and filed the instant tort suit in Montana. The Oklahoma employer, which had paid out $600,000 in benefits, moved to intervene. Such intervention would have been allowed under Oklahoma subrogation law, but under Montana law, a party may not subrogate until the injured worker has been made whole.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Talbot v. WMK-Davis, LLC, 2016 MT 247, 2016 Mont. LEXIS 900 (Oct. 4, 2016)

See generally Larson’s Workers’ Compensation Law, § 117.01.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law