(concurring specially).
Although I concur in the result, the majority opinion fails to address some issues that may arise when the employer and the third-party tortfeasor reach a settlement just before trial. If the entire amount of workers’ compensation paid is removed from the injured employee’s claim, the plaintiff may be penalized in several ways.
First, the plaintiff may not meet the threshold requirements to bring a lawsuit. See Minn.Stat. § 65B.51, subd. 3 (1990). If the plaintiff is able to go to trial, the jury might wonder why she has not submitted medical expenses when it is apparent that she has been injured. The court would have to explain to the jury why medical expenses are not included. These explanations would further complicate an already complex system and add to jury confusion.
Finally, plaintiff’s attorney fees would be subject to dramatic reduction when the employer and the third party reach, an eleventh-hour settlement. Lawyers would be discouraged from taking cases in which the chances of recovery against the tortfeasor in excess of workers’ compensation are not great. Consequently, many injured employees with tort claims would go unrepresented. The system would create a bonanza for insurance companies at the expense of injured workers.
Allocation of attorney fees pursuant to Minn.Stat. § 176.061, subd. 6 (1990) is premised on the notion that, once trial commences, the plaintiff’s attorney has prepared for recovery of the entire sum the tortfeasor owes, and so all parties should pay their share of costs and attorney fees. The same- logic applies when the employer and the tortfeasor settle just before trial. The plaintiff’s attorney has prepared and has earned fees for the entire claim, including workers’ compensation benefits. The majority’s bright-line test imposes an arbitrary deadline: 1 hour before a settlement, the plaintiff’s attorney is entitled to a percentage of the entire claim; 1 hour later, he is not.