concurring in part, and in part dissenting.
I concur with the holding of the majority that it is not necessary for a plaintiff to obtain a recovery in order to require the subrogation interest of the employer or the employer’s insurer to participate in the costs.
I respectfully dissent, however, from that portion of the majority opinion holding that Yellow Freight did not join in the prosecution of the claim and, therefore, is not liable for its proportionate share of Janssen’s costs.
Having filed an answer adopting Janssen’s prayer for relief, Yellow Freight has, in the words of Neb. Rev. Stat. § 48-118 (Reissue 1993), joined in the presentation of the claim. Section 48-118 provides that Yellow Freight shall have an equal voice in the claim in the prosecution of the suit. It also provides that any settlement of Janssen’s case would be void unless “such settlement [is] agreed upon in writing by the employee or his or her personal representative and the insurer of the employer if there is one, and if there be no insurer, then by the employer . . . .” (Emphasis supplied.) § 48-118.
In Janssen’s motion to apportion expenses, paragraph No. 3 states:
[D]uring settlement negotiations at the time of the first and second trial the said defendant Yellow Freight Systems, Inc. refused to discount or discuss a compromise settlement of their claim which was in the amount of $52,114.89. As a result thereof, settlement negotiations completely broke down necessitating a second trial which resulted in a verdict in favor of defendant Tomahawk Oil Co., Ltd.
That Yellow Freight did not attend depositions, attend a pretrial conference, or attend or participate in the trial are choices made by Yellow Freight, and those choices should not operate to Janssen’s detriment. In this case, the allegation is made that Yellow Freight’s intransigence in insisting upon 100 percent of its subrogation claim hindered settlement negotiations. In negotiating over its subrogation claim, Yellow Freight was obviously *379exercising its “equal voice” in the prosecution of the suit as set out in § 48-118. What the employer or employer’s insurer is requesting in this case is to be given a free ride, with there being no downside or detriment in the form of potential costs in the event of an unfavorable verdict.
As was held in Kaiman v. Mercy Midlands Medical & Dental Plan, 1 Neb. App. 148, 491 N.W.2d 356 (1992), the Nebraska Court of Appeals, in reciting the history of Krause v. State Farm Mut. Auto. Ins. Co., 184 Neb. 588, 169 N.W.2d 601 (1969), and United Services Automobile Assn. v. Hills, 172 Neb. 128, 109 N.W.2d 174 (1961), stated:
[T]he decisions show an unwillingness to allow the holder of the subrogated interest to have a “free ride” from the effort of the plaintiff and his or her attorney, who successfully bring the action which results in the creation of the fund which satisfies the subrogated interest. The concept that the employer or compensation insurer who benefits from third-party tort litigation must share in the expenses thereof is now codified in the Nebraska Workers’ Compensation Act, Neb. Rev. Stat. § 48-118 (Reissue 1988).
Kaiman, 1 Neb. App. at 152, 491 N.W.2d at 358.
Since our holding in the instant case makes the issue of recovery irrelevant in answering the question of whether the employer or the employer’s insurance carrier should participate in the costs, I can see no reason why the opportunity should be given to the employer or the employer’s insurance carrier to have a “free ride” and participate if the employee wins, but not participate if the employee loses.
I would hold that Yellow Freight did join in the prosecution of the claim and, therefore, reverse the decision of the Court of Appeals and remand the cause for a further hearing to determine the proportion of the costs to be paid by Janssen and the proportion of the costs to be paid by Yellow Freight.