Section 37-33-162 - Subrogation of department as to proceeds owing to client from claim for which assistance is provided; rights and duties of client; conduct and disposition of claim; double assessment for failure to honor subrogation rights(1) If medical or rehabilitation assistance is provided to a client under this article for injury, loss or damage caused under circumstances creating a cause of action in favor of the client against any person, firm or corporation, then the department shall be entitled to recover the proceeds that may result from the exercise of any rights of recovery which the client may have against any such person, firm or corporation to the extent of the actual amount of the medical or rehabilitation assistance made by the department on behalf of the client. The client shall execute and deliver instruments and papers to do whatever is necessary to secure such rights and shall do nothing after said medical and/or rehabilitation assistance is provided to prejudice the subrogation rights of the department. Pursuant to Section 31-19-29, Mississippi Code of 1972, the department may compromise or settle any such claim and execute a release of any claim it has by virtue of this section.
(2) The acceptance of medical and/or rehabilitation assistance under this article or the making of a claim thereunder shall not affect the right of client or his legal representative to recover the medical and/or rehabilitation payments made by the department as an element of damages in any action at law; provided, however, that a copy of the pleadings shall be certified to the department at the time of the institution of suit, and proof of such notice shall be filed of record in such action. The department may, at any time before the trial on the facts, join in such action or may intervene therein. Any amount recovered by a client or his legal representative shall be applied as follows: (a) The reasonable costs of the collection, including attorney's fees, as approved and allowed by the court in which such action is pending, or in case of settlement without suit, by the legal representative of the department;(b) The actual amount of the medical and/or rehabilitation payments made by the department on behalf of the client; or such pro rata amount as may be arrived at by compromise settlement pursuant to Section 37-33-162(1), or as set by the court having jurisdiction; and(c) Any excess shall be awarded to the client.(3) No compromise of any claim by the client or his legal representative shall be binding upon or affect the rights of the department against the third party unless, pursuant to Section 37-33-162(1), the department has entered into the compromise. Any compromise effected by the client or his legal representative with the third party in the absence of advance notification to and approved by the department shall constitute conclusive evidence of the liability of the third party, and the department, in litigating its claim against said third party, shall be required only to prove the amount and correctness of its claim relating to such injury, loss or damage. It is further provided that should the client or his legal representative fail to notify the department of the institution of legal proceedings against a third party for which the department has a cause of action, the facts relating to negligence and the liability of the third party, if judgment is rendered for the client, shall constitute conclusive evidence of liability in a subsequent action maintained by the department and only the amount and correctness of the department's claim relating to injury, loss or damage shall be tried before the court. The department shall be authorized in bringing such action against the third party and his insurer jointly or against the insurer alone.(4) By accepting medical and/or rehabilitation payments from the department, the client shall, to the extent of the payment of medical expenses by the department, be deemed to have made an assignment to the department of any and all rights and interests in any third-party benefits, hospitalization or indemnity contract or any cause of action, past, present or future, against any person, firm or corporation for benefits provided to the client by the department for loss, injury or damage caused or suffered under circumstances creating a cause of action in favor of the client against such person, firm or corporation as set out in Section 37-33-162(1).(5) Nothing herein shall be construed to diminish or otherwise restrict the subrogation rights of the department against a third party for medical and/or rehabilitation payment paid by the department in behalf of the client as a result of injury, loss or damage caused under circumstances creating a cause of action in favor of the client against such a third party.(6) Any person, firm or corporation who fails or refuses to honor the subrogation rights of the department and specifically, without limitation, hospital insurance and indemnity benefits accruing to a client, shall be subject, should suit become necessary and liability be established, to an assessment of double the amount of medical/rehabilitation payments paid by the department, or double the amount of the insurance policy limits, whichever is the lesser, inclusive of the assessment of a reasonable attorney's fee and all costs of court.Laws, 1993, ch. 371, § 1, eff. 7/1/1993.