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Legal Malpractice

: New York Attorney Malpractice Blog

Recovering Workers' Compensation Liens in Legal Malpractice

By (Andrew Lavoott Bluestone)

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Worker is injured on the job by a paving machine. Worker collects WC benefits from his employment. Worker sues paving machine manufacturer in products liability, and his attorney blows the statute. Worker succeeds in legal malpractice. May WC carrier recoup benefits?

Had the case been tried as a products liability case [not legal malpractice] in NY, the answer would be yes, recoupment. Here, in this Florida case, the answer is no. Here is the blurb from Risk & Insurance.com

"Case name:Columbia v. Brewer, No. 1D07-5658 (Fla. Dist. Ct. App. 10/22/08).

What it means: An injury suffered as a result of legal malpractice does not occur in the course of a claimant's employment, and the defendants in a legal malpractice case are not third-party tortfeasors under Florida law. As a result, the claimant's employer is not entitled to recoup the workers' compensation benefits it has paid from the proceeds of the legal malpractice settlement. Instead, it may sue the third party that caused the claimant's injuries if the claimant fails to do so within one year after the cause of action accrues. "

Full post as published by New York Attorney Malpractice Blog on November 18, 2008 (boomark / email).