(dissenting).
I respectfully dissent. In Liberty Mut. Ins. Co. v. Nutting Truck & Caster Co., 295 Minn. 211, 203 N.W.2d 542 (Minn.1972), the supreme court merely held that the untimely initiation of the carrier’s claim was excused by the timely initiation of the employee’s claim. The issue in this case concerns the effect of terminating a timely claim after the limitation period has run. Nutting does not hold that the timely initiation of an employee’s claim excuses voluntary termination of the employer’s claim after the limitation period has run. If this were so, then an employer could pursue a claim, or dismiss and reinitiate a claim 20 years after the limitation period as long as the employee’s action was initiated within the limitation period.
This court appears to have allowed just such a result in American Mut. Ins. Co. v. Honeywell, Inc., 422 N.W.2d 274 (Minn.App.1988), pet. for rev. denied (Minn. June 10, 1988). In Honeywell an employee sued and settled, excepting subrogation claims, before the limitation period ran. At least two years after the limitation passed, the worker’s compensation carrier sued the tortfeasor to recover worker’s compensation payments. This court held that under Nutting, the carrier’s suit was timely because the employee’s suit was timely. Presumably, the carrier could have sued 20 years after the limitation had run and still be saved by the employee’s timely filing.
It is unlikely that Nutting was intended to have such an effect. Nutting revives only those subrogation claims that coexisted with the employee’s claim, and then continued uninterrupted after the employee settled. Any break in the chain after the limitation period must be fatal or claims could be indefinitely extended, as provided in Honeywell. Such a result is clearly against public policy requiring reasonable diligence in bringing litigation to a close and prohibiting parties from delaying suits for an unreasonable length of time. De-Mars v. Robinson King Floors, Inc., 256 N.W.2d 501, 504 (Minn.1977).
IDS argues that Nutting is not distinguishable because the carrier in Nutting was able to reinstate its claim following dismissal despite the fact that the limitation period had run. IDS contends that the dismissal and attempted reinitiation in this case are no different. I disagree, and I would hold that the differences are determinative. In Nutting the carrier’s claim coexisted with the employee’s claim and continued uninterrupted until the trial court ordered dismissal because the carrier’s initial filing was untimely. The supreme court reversed, holding the the original filing was timely due to the employee’s prompt action. Neither court considered the effect of refiling an initially timely claim following a voluntary dismissal after the limitation had run.
In this case, there is no dispute that IDS’ initial claim was timely. Even if the claim was filed after the limitation had run, Nutting would serve to revive it. If the trial court had dismissed IDS’ claim due to the untimeliness of the initial filing, Nutting would require reversal. The distinction between voluntary dismissal in this case and involuntary dismissal in Nutting is that IDS failed to preserve its claim after the limitation had run, while the claim in Nutting would have continued uninterrupted but for the trial court’s dismissal. The dismissal in this case was occasioned by IDS’ choice to discontinue its suit, not by the trial court’s erroneous view that a carrier cannot join a timely action after the limitation has run.
Because Nutting does not directly apply, this case may be resolved by relying on other supreme court precedent. An employer can only assert a right equal to that asserted by its employee. As in Nutting, an employer’s claim may be revived by the timely action of its employee. However, an employer cannot assert a right greater than that possessed by its employee. American Mut. Liab. Ins. Co. v. Reed Cleaners, 265 Minn. 503, 122 N.W.2d 178 (1963). Where the employee’s claim would be barred because he voluntarily dismissed his claim after the limitation has run, see DeMars, 256 N.W.2d at 505, the employer’s claim should also be barred.
*221I would affirm the trial court’s order dismissing IDS’ subrogation claim as barred by the statute of limitations. The timeliness of an employee’s filing cannot revive an employer’s claim once the employer voluntarily dismisses its claim after the limitation period has run.