dissenting.
[¶ 51] I respectfully dissent. The Workforce Safety and Insurance order is consistent with the statute.
[¶ 52] Workforce Safety and Insurance paid nearly a quarter of a million dollars in benefits for Haugenoe, including the costs incurred because of the medical malpractice. The legal malpractice recovery represents what should have been recovered in the medical malpractice action. WSI seeks fifty percent of the legal malpractice recovery, reduced by attorney’s fees and its share of expenses.
[¶ 53] Although some states allow sub-rogation of legal malpractice claims arising out of medical malpractice in connection with a compensable workplace injury, and some states do not allow such subrogation, the determination usually turns on the wording of the state statute. See In Re Worker’s Compensation Lien, 231 Mich. App. 556, 591 N.W.2d 221, 224 (1998); Virginia Municipal Group Self-Insurance Ass’n, 66 Va. Cir. 236, 2004 WL 3132010 (Va.Cir.Ct. Nov. 24, 2004). In North Dakota, our statute supports subrogation:
When an injury or death for which compensation is payable under provisions of this title shall have been sustained under circumstances creating in some person other than the fund a legal liability to pay damages in respect thereto, the injured employee, or the employee’s dependents may claim compensation under this title and proceed at law to recover damages against such other person. The fund is subrogated to the rights of the injured employee or the employee’s dependents to the extent of fifty percent of the damages recovered up to a maximum of the total amount it has paid or would otherwise pay in the future in compensation and benefits for the injured employee. The organization’s subrogation interest may not be reduced by settlement, compromise, or judgment.
N.D.C.C. § 65-01-09 (1999).
[¶ 54] There was “an injury” caused by the malpractice in treating the original workplace injury, for which compensation was payable and paid by WSI. It was under circumstances which created in some person other than WSI “a legal liability to pay damages in respect thereto.” The circumstances of this case, legal malpractice, created in the lawyer a duty to pay damages “in respect” to the damages caused by the medical malpractice in treating the claimant’s injuries.
[¶ 55] North Dakota’s worker’s compensation agency has had subrogation rights since the worker’s compensation fund was established in 1919. State v. Clary, 389 N.W.2d 347, 348 (N.D.1986). The purpose of those subrogation rights “is to reimburse the fund, to the extent possible, at the expense of the persons at fault.” Blaskowski v. North Dakota Workmen’s Compensation Bureau, 380 N.W.2d 333, 335 (N.D.1986). Under the concept of subrogation, WSI “stands in the shoes” of the claimant for any recovery. See Ness v. St. Aloisius Hospital, 313 N.W.2d 781, 783 (N.D.1981). In this case, there was no dispute that as a result of the alleged medical malpractice, WSI paid additional benefits to the claimant. The legal malpractice precluded recovery on the medical malpractice, and the legal malpractice recovery was “with respect to” the medical malpractice.
[¶ 56] Haugenoe’s legal malpractice claim is directly derived from the medical malpractice claim against the doctor. I would affirm the district court judgment affirming the order of WSI.
[1167] DALE V. SANDSTROM