Workers' Comp Lien - Choice of Law

Austin personal injury lawyer

Aug 12, 2013 — by Jeff Mundy
Tags: Civil Procedure



"Which state's law governs an issue is a question of law for the court to decide." "Texas uses the Restatement's 'most significant relationship' test to decide choice-of-law issues." 

For tort suits, the "most significant relationship" test involves at least two levels of analysis. The first level, as stated in section 6 of the Restatement (Second) of Conflict of Laws, involves a general test: the weighing of the competing policy interests of the different jurisdictions. 

 Section 6 requires consideration of

(a) the needs of the interstate and international systems,
(b)the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d)the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g)ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws § 6(2).

The second level of analysis provides additional guidance concerning a specific area of law. Section 6 "sets out the general principles by which the more specific rules are to be applied."In a tort case, section 145 provides a more specific rule. Id. at 319. Section 145 emphasizes the four factors:

(a) the place where the injury occurred,
(b)the place where the conduct causing the injury occurred,
(c) the domicil[e], residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.

Restatement (Second) of Conflict of Laws § 145(2).

Another level of analysis may be directed by other sections of the Restatement where there is a specific context within the area of law. Texas courts have often applied more specific sections of the Restatement to address particular choice of law issues. Hughes, 18 S.W.3d at 206 n.2 (holding section 184 of the Restatement provides the "standards by which a court is to determine immunity from a tort suit when an employee is covered by workers' compensation insurance").


The issue before us is whether the trial court abused its discretion in granting the Neeses' motion to strike ICSP's petition in intervention. In order to evaluate that issue, we must determine whether ICSP has demonstrated standing: that is, the right to assert a justiciable interest in the outcome of the lawsuit. The issue of standing is decided by determining whether ICSP can assert in this case a right of subrogation to recover the workers' compensation survivor death benefits it has paid. ICSP argues Texas law applies, and it has such subrogation rights. ("If there is a recovery [in a wrongful death or survival claim against a third party], . . . the carrier is first entitled to the money up to the total amount of benefits it has paid"). However, the Neeses argue under the applicable law of Oklahoma, ICSP has no subrogation rights to the workers' compensation survivor benefits it was ordered by the Oklahoma court.  ("Nothing in 85 O.S. § 44(d) gives an insurer a right of recovery for death benefits it extends.") 

ICSP argues, "[w]hen applied to the present facts, the factual considerations outlined in § 145(2) of the Restatement demonstrate that Texas has the most significant relationship to the relevant issues." ICSP contends the most significant contacts in the case to be considered are that the injury occurred in Texas, all of the conduct causing the injury complained of occurred in Texas, and the relationship between the parties is centered in Texas. Additionally, ICSP contends the parties' domicile or residency are neutral in the choice-of-law analysis because the parties are from different states; that is, James Neese was a resident of Oklahoma, the defendant pipeline companies are incorporated and doing business in Texas, and ICSP is incorporated in the State of Pennsylvania.

The Neeses respond that ICSP's argument that Texas law applies is based upon an application of the most-significant-relationship test to "the case as a whole." Whereas, the Neeses argue the proper analysis is to apply the test to the limited "particular" issue of ICSP's subrogation claims. We agree. 

The parties provided their respective views and analysis regarding application of Restatement sections 6 and 145 suggesting the conclusion we should reach when applying the "most significant relationship" test. However, we need not address those Restatement sections that identify considerations of a general nature. Where a specific context within an area of the law is implicated, and the Restatement has addressed the choice of law in that context, Texas courts have often applied a specific section of the Restatement. 

In this case, we address a wrongful death case. However, the particular issue before the trial court and this court is a narrow, specific issue of whether the law of Texas or Oklahoma should prescribe the subrogation rights of ICSP. Section 185 of the Restatement (Second) of Conflict of Laws provides specific guidance. Section 185 provides

The local law of the state under whose workmen's compensation statute an employee has received an award for an injury determines what interest the person who paid the award has in any recovery for tort or wrongful death that the employee may obtain against a third person on account of the same injury.

Restatement (Second) of Conflict of Laws § 185 (1971).

Comment (a) describes the rationale of the rule.

Under the rule of this Section, the local law of the state under whose workmen's compensation statute the claimant has received an award for an injury determines what interest the person who paid the award has in the recovery on any cause of action for tort or wrongful death that the employee may have against a third person on account of the same injury.


At the time of James Neese's injury that caused his death on June 7, 2010, Neese and his survivors were all residents of Oklahoma, Neese's employer C & H, with whom ICSP contracted to provide workers' compensation insurance, was headquartered in Oklahoma, and the workers' compensation death benefits award was rendered in Oklahoma. Moreover, the final judgment of the Oklahoma Workers' Compensation Court specified the award of workers' compensation death benefits to the Neeses was pursuant to the Oklahoma Workers' Compensation Act. At the time of James Neese's fatal injury, Oklahoma law provided that the party that paid workers' compensation death benefits had no right of subrogation to recover benefits paid from any recovery against that party's tortfeasors... (law in effect at the time of the employee's injury applies). On this record, in this case, we conclude Oklahoma is "the state under whose workmen's compensation statute [the Neeses have] received an award, " and Oklahoma's law "determines what interest [ICSP as] the person who paid the award has in the recovery." See Restatement (Second) of Conflict of Laws § 185, cmt. a. We further conclude ICSP had no standing to pursue its claimed subrogation rights. The trial court did not err. We decide ICSP's issue against it.

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