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| Case Name | McKinnon v. Otis Elevator Company | |
|---|---|---|
| Date | 04/18/2007 | |
| Note | When an employer fails to adequately notify its employee of its subrogation lawsuit and proposed settlement involving the alleged third-party tortfeasor and fails to obtain the employee's consent to the settlement of that suit, and when the settling alleged third-party tortfeasor, prior to settlement, was or reasonably should have been aware of the possibility of the employee's claim for damages against the tortfeasor, the alleged tortfeasor cannot use the mere settlement and dismissal of the employer's subrogation action to bar the employee from maintaining her own action for damages against the alleged tortfeasor. | |
| Citation | 149 Cal. App. 4th 1125 | |
| WCC Citation | WCC 32162007 CA |
Ct. No. 04AS02043) DEBORAH MCKINNON, Plaintiff and Appellant, v. OTIS ELEVATOR COMPANY, Defendant and Respondent. Landmark Healthcare's workers' compensation insurer, Everest National Insurance Company, and its claims administrator, American Commercial Claims Administrators (collectively, Employer), paid and became obligated to pay workers' compensation benefits to Employee, and, on May 23, 2003, filed a negligence-based subrogation complaint against Otis Elevator Company (Otis) to recoup these benefits. "At the current time ACCA is in the process of settling its case against Otis Elevator Company for the workers' compensation benefits paid on your behalf. Consequently, the settlement and dismissal of Employer's subrogation lawsuit against Otis does not bar Employee's lawsuit against Otis. As to Employee's lawsuit against Otis, Employee will not be allowed double recovery and Otis will not be subjected to double liability.
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