                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2011-CT-00179-SCT

LIBERTY MUTUAL INSURANCE COMPANY

v.

RICHARD SHOEMAKE

                           ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                       12/28/2010
TRIAL JUDGE:                            HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:              NEWTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                 TARA STRICKLAND CLIFFORD
ATTORNEY FOR APPELLEE:                  DAVID C. DUNBAR
NATURE OF THE CASE:                     CIVIL - WORKERS’ COMPENSATION
DISPOSITION:                            THE JUDGMENT OF THE COURT OF
                                        APPEALS IS REVERSED, AND THE
                                        JUDGMENT OF THE CIRCUIT COURT OF
                                        NEWTON COUNTY IS REINSTATED AND
                                        AFFIRMED - 05/02/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      EN BANC.

      CHANDLER, JUSTICE, FOR THE COURT:

¶1.   Ultimately, this case concerns the proper procedure by which a workers’

compensation insurer may enforce a subrogation claim arising under Mississippi Code

Section 71-3-71. Richard Shoemake was injured in Alabama but received workers’

compensation benefits from Liberty Mutual Insurance Company under Mississippi law. He

brought and settled a third-party action in Alabama state court and reimbursed Liberty

Mutual only the amount it was entitled to under Alabama law. Liberty Mutual, which knew
of but did not join or intervene in the Alabama lawsuit, then sued Shoemake in the Circuit

Court of Newton County, seeking full reimbursement as allowed under Section 71-3-71. In

granting Shoemake summary judgment, the circuit court held that Alabama law applied and

further concluded that res judicata and Liberty Mutual’s failure to intervene in the Alabama

action barred Liberty Mutual’s claim.

¶2.    The Court of Appeals reversed, holding that Mississippi law governed the amount of

Liberty Mutual’s subrogation claim and that Liberty Mutual was not required to intervene

in the Alabama action to become entitled to reimbursement under Mississippi law. Because

we find that Mississippi Code Section 71-3-71 requires a workers’ compensation insurer to

join or intervene in a third-party action to become entitled to reimbursement, we reverse the

judgment of the Court of Appeals and affirm the judgment of the circuit court.

                        FACTS AND PROCEEDINGS BELOW

¶3.    Richard Shoemake is a Mississippi resident who was employed by Simmons Wrecker

Service, a Mississippi company. On September 18, 2003, while in the course and scope of

his employment with Simmons, Shoemake was injured when a train collided with his truck

in Macon County, Alabama. Shoemake filed a workers’ compensation claim under

Mississippi law and received $132,402.65 in benefits from Simmons’s insurance carrier,

Liberty Mutual Insurance Company. Shoemake then brought a third-party tort action against

the train operator in Alabama state court.

¶4.    Liberty Mutual had notice of the action at all relevant times and was periodically

advised of the status of the litigation and mediation by Shoemake’s Alabama counsel but

made no attempt to join in, intervene in, or in any way participate in the Alabama action. The


                                              2
action was settled without trial on June 27, 2007, for $315,000. A final order dismissing the

action with prejudice was entered by the Alabama court on January 16, 2008. Out of the

settlement funds, Shoemake remitted $82,226.84 to Liberty Mutual on December 12, 2008.

Liberty Mutual subsequently sued Shoemake in the Circuit Court of Newton County on April

14, 2009, to recover an additional $50,175.81.

¶5.    Liberty Mutual claimed that, under Mississippi workers’ compensation law, it was

entitled to recover all $132,402.65 in compensation benefits it had paid to Shoemake, without

sharing the costs of collection. Shoemake sought summary judgment, arguing that Alabama’s

“common funds” doctrine applied to the Alabama tort action, and as such, Liberty Mutual

was required to pay 35% of his attorney fees and a proportional share of other collection

costs. He claimed that, after these had been deducted, Liberty Mutual was fully reimbursed.

Moreover, he argued that the dismissal of the Alabama action with prejudice precluded

Liberty Mutual from relitigating the choice-of-law issue and the amount of subrogation it was

owed. The circuit court granted summary judgment for Shoemake, finding that Alabama law

governed, that Liberty Mutual’s claims had been settled by the Alabama action and were

barred by res judicata, and that Liberty Mutual had waived its right to have its subrogation

claim heard by failing to intervene in the Alabama action.

¶6.    Liberty Mutual successfully appealed to the Mississippi Court of Appeals, which held

that, under the “significant relationship” test, Mississippi law governed the subrogation

claim. Liberty Mut. Ins. Co. v. Shoemake, __So. 3d__, 2012 WL 1925646 (Miss. Ct. App.

2012). Further, it held that Section 71-3-71did not require Liberty Mutual to intervene in the

third-party action to pursue subrogation. We agree that, as between Liberty Mutual and

                                              3
Shoemake, Mississippi law defines and governs Liberty Mutual’s subrogation claim.

However, because Mississippi Code Section 71-3-71 requires an employer or insurer to

intervene in a third-party action in order to become entitled to reimbursement, we reverse the

judgment of the Court of Appeals and reinstate the judgment of the circuit court.

                                STANDARD OF REVIEW

¶7.    We review the circuit court’s grant or denial of summary judgment under a de

novo standard. Entergy Miss., Inc. v. Burdette Gin Co., 726 So. 2d 1202, 1205 (Miss. 1998).

Further, “whether the circuit court had proper jurisdiction to hear a particular matter is a

question of law,” which also requires a de novo standard of review. Id. at 1204-05.

                                       DISCUSSION

¶8.    We begin by noting the anomalous situation in this case. Shoemake’s receipt of

benefits, his retained right to sue a responsible third party, and Liberty Mutual’s subrogation

claim all arise out of Mississippi’s workers’ compensation statute. However, once Shoemake

sued in Alabama, the choice-of-law question would have been determined by an Alabama

court, had Liberty Mutual chosen to join or intervene in that action. We would not have had

any opportunity to determine what law applied, had a separate Mississippi state lawsuit not

been filed. We find no fault with the Court of Appeals’ choice-of-law analysis as it applies

to the Mississippi action. In a Mississippi action, where a Mississippi resident employed by

a Mississippi company elects to receive compensation benefits under Mississippi law,

regardless of whether the injury occurred in another state, Mississippi’s workers’

compensation law governs the statutory subrogation rights of an employer or insurer who

has paid benefits to that worker.

                                              4
¶9.    However, this case can be decided without reaching a putative conflict-of-law issue.

Today’s action, which seeks the enforcement of Liberty Mutual’s subrogation claim, arose

solely under Mississippi law. The procedure by which an employer or insurer who has paid

compensation benefits can be reimbursed out of damages paid by a third party is set out in

Mississippi Code Section 71-3-71, and the proper interpretation of that provision resolves

this dispute. See Miss. Code Ann. § 71-3-71 (Rev. 2011). The real question before us then

is whether a statutory subrogation claim under Section 71-3-71 may be brought in a separate

action after the conclusion of a third-party action in which the insurer had notice but did not

join or intervene.

       1.      Does Section 71-3-71 require an employer or insurer to join or
               intervene to become entitled to reimbursement?

¶10.   First, we must determine whether Liberty Mutual should have intervened to enforce

its subgrogation claim. The subrogation rights of an employer or insurer who has paid

workers’ compensation benefits “do not spring from a contractual agreement . . . , but rather

are conferred by Section 71-3-71.” Federated Mut. Ins. Co. v. McNeal, 943 So. 2d 658, 661

(Miss. 2006). Because the right to reimbursement “exists by virtue of statute and must rise

or fall strictly as a matter of statutory interpretation,” we must first look to the plain language

of Section 71-3-71 to determine whether Liberty Mutual is entitled to reimbursement without

intervention. Id. (quoting Mississippi Food & Fuel Workers' Comp. Trust v. Tackett, 778

So. 2d 136, 143 (Miss. Ct. App. 2000)).

¶11.   Section 71-3-71 permits an injured worker who receives compensation benefits from

his employer or its insurer to pursue an action against a third party and gives the employer



                                                5
or insurer the right to either join or intervene in such an action. In turn, the statute allows the

employer or insurer to be fully reimbursed for all compensation paid out of the worker’s net

recovery. However, the language of Section 71-3-71 clearly conditions the employer or

insurer’s right to reimbursement upon the employer or insurer’s joinder or intervention in the

third-party action:

       The acceptance of compensation benefits from or the making of a claim for
       compensation against an employer . . . shall not affect the right of the
       employee or his dependents to sue any other party at law for such injury or
       death, but the employer or his insurer shall be entitled to reasonable notice
       and opportunity to join in any such action or may intervene therein. If such
       employer or insurer join in such action, they shall be entitled to repayment
       of the amount paid by them as compensation and medical expenses from the
       net proceeds of such action (after deducting the reasonable costs of collection)
       as hereinafter provided.

Miss. Code Ann. § 71-3-71 (Rev. 2011) (emphasis added). The phrase “if such employer or

insurer join” means that the employer or insurer is entitled to repayment under the statute

only if it first joins or intervenes in the action.1 Further, where the following paragraph states

that the employee’s net recovery “shall be used to discharge the legal liability of the

employer or insurer,” it is simply elaborating on the earlier phrase “as hereinafter provided”


       1
          The phrase “if such employer or insurer join in such action”can be fairly read to
mean “join or intervene in such action.” The preceding sentence unambiguously gives an
employer or insurer the right either to join or intervene in the third-party suit. The
Legislature’s choice of the word “join” to describe the employer or carrier’s participation in
the suit should not be construed strictly as meaning that joinder alone, and not intervention
as well, is the only means by which an employer or carrier may become entitled to
reimbursement. We recognize that joinder and intervention are distinct concepts governed
by different procedural rules, although for our purposes they may be used interchangeably
in the cases discussed below. However, the plain language of Section 71-3-71 – which pre-
dates the adoption of our rules of civil procedure – allows either joinder or intervention, and
we affirm that either will suffice to protect an insurer’s or employer’s right to
reimbursement.

                                                6
and applies only where the employer or insurer joins or intervenes in the action. Miss. Code

Ann. § 71-3-71 (Rev. 2011).

¶12.   In spite of the clear language of Section 71-3-71, Liberty Mutual argues that this

Court has never required a workers’ compensation insurer to intervene in a third-party action

to enforce its statutory right of reimbursement. Following language in Federated Mutual

Insurance Company v. McNeal, 943 So. 2d 658 (Miss. 2006), the Court of Appeals drew

the same conclusion. Importantly, the McNeal Court did not have before it the question of

whether intervention was a prerequisite to subrogation. Moreover, neither the cases cited by

McNeal nor Liberty Mutual support Liberty Mutual’s claim.

¶13.   As in this case, McNeal involved an injured employee who settled a third-party action

after receiving compensation benefits. Id. at 659. The insurer in that case, Federated Mutual,

failed to intervene formally according to Rule 24 of the Mississippi Rules of Civil Procedure.

Id. at 659, 662. Instead, after the case was settled, but before the settlement funds were

disbursed, Federated filed a motion to compel reimbursement of all compensation paid under

Section 71-3-71. Id. at 659. Federated appealed the denial of that motion to this Court. Id.

at 660. The McNeal Court then made the following statement which Liberty Mutual and the

Court of Appeals now seize upon:

       Federated pointed out in oral argument that our case law has not required a
       workers’ compensation insurer to intervene or join in an employee’s
       third-party suit in order to assert its statutory lien. Indeed, Federated is correct,
       as this Court has never required the insurance carrier to join or intervene in an
       employee’s third-party litigation to validate or enforce its subrogated claim to
       the proceeds recovered in that litigation. See, e.g., Sneed v. Verdun, 611 So.
       2d 947, 948 (Miss. 1992); Kidwell v. Gulf, Mobile & Ohio R.R., 251 Miss.
       152, 168 So. 2d 735, 736 (1964).



                                                7
McNeal, 943 So. 2d at 662.

¶14.   However, the issue McNeal resolved was “not whether Federated is entitled to

subrogation without intervention, but rather whether Federated may appeal the circuit court's

decision without intervention.” Id. We went on to find that “the circuit court and all parties

to the litigation accepted Federated as having intervened in the proceedings,” and that

“[a]lthough the formal procedural requirements of Rule 24 were not met, no objection was

raised to either Federated’s participation in the trial court or its pursuit of this appeal.” Id. at

663. Finally, in spite of our lenient application of Rule 24, “we stress[ed] that the better

practice for insurers who anticipate the possible need for judicial assistance in enforcing their

liens is to file a formal intervention in accordance with the provisions of Rule 24 of the

Mississippi Rules of Civil Procedure.”Id.

¶15.   Because the McNeal Court accepted Federated’s misnomed claim in the third-party

action, it did not determine whether intervention is a prerequisite to subrogation. As such,

the McNeal decision itself is an inadequate basis for a rule that subrogation does not require

intervention. While McNeal cited Sneed v. Verdun, 611 So. 2d 947, 948 (Miss. 1992), and

Kidwell v. Gulf, Mobile & Ohio Railroad Co., 251 Miss. 152, 168 So. 2d 735(1964), neither

case supports a conclusion that Section 71-3-71 and our prior decisions do not require an

employer or insurer to join or intervene to become entitled to reimbursement.

¶16.   In Sneed, the circuit court approved a settlement between the injured worker and third

party, but retained jurisdiction to allow the employer notice and the opportunity to intervene

before final disbursement of the funds. Sneed, 611 So. 2d at 947-48. The employer did in

fact intervene, and we affirmed the circuit court’s decision that intervention at that point was

                                                 8
timely. Id. at 948. We did not, however, state that intervention was unnecessary. Indeed, the

allowance of an eleventh-hour intervention suggests that intervention was necessary for the

employer to be reimbursed.

¶17.   In Kidwell, the insurer intervened in the employee’s third-party action prior to trial.

Kidwell, 168 So. 2d at 736. The issue we decided was whether the insurer was entitled to

have its attorney fees incurred in the intervention reimbursed out of the employee’s recovery.

Id. at 736. We emphasized that intervention “assured the intervenor, by statute, his right of

reimbursement for monies expended as compensation and medical expenses or of the

discharge of his legal liability therefor in the event judgment was obtained.” Id. As such, the

insurer had a choice either to pursue reimbursement and bear the costs of intervention, or

forgo reimbursement altogether by not intervening:

       The intervention is not required by law, but is optional on the part of the
       carrier. It could intervene if the prospective judgment appeared great enough
       to reimburse it for monies expended in accordance with section 6998-36 [now
       Section 71-3-71], or it might decline to do so as discretion might dictate. The
       choice of intervention is that of the carrier and is not mandatory.

Id. Rather than holding that intervention is not required for reimbursement, Kidwell supports

our interpretation of Section 71-3-71 that an employer or insurer forgoes reimbursement if

it exercises its discretion not to intervene.

¶18.   Also at issue in McNeal was whether an employer or insurer was entitled to

reimbursement if the injured employee was not “made whole” by the third-party recovery.

McNeal, 943 So. 2d at 659-60. We reiterated that Section 71-3-71 “unambiguously provides

that, after deducting the costs of collection and attorney’s fees, any recovery from a third

party . . . must be applied first to repay the workers’ compensation insurer” and thus, the

                                                9
“made-whole” doctrine did not apply to the statute. Id. at 660. Again, the cases McNeal cites

do not suggest that reimbursement is mandated where the employer or carrier does not

intervene.2 Because the Court of Appeals used this language to support its holding that

intervention is unnecessary, we simply point out that the statute also unambiguously provides

that an employer or insurer must first join or intervene to be entitled to reimbursement. Only

after joinder or intervention does the statute mandate that an employer or insurer who has

paid compensation benefits must be reimbursed from any third-party recovery.

¶19.   In addition to the cases cited in McNeal, Liberty Mutual relies on Powe v. Jackson,

236 Miss. 11, 109 So. 2d 546 (1959). In Powe, an injured worker settled his third-party

claims before filing suit and without the approval of the Workers’ Compensation

Commission. Id. at 550. While the employer knew of the settlement negotiations, there was

no action in which it could have joined or intervened. Id. at 549-550. We held only that the

employer did not waive its right to reimbursement by not intervening in a settlement that

took place before an action was ever filed and that was not approved by the Commission. Id.

at 550. We explained that Commission approval of a settlement without suit serves “to

preserve the subrogation and indemnity rights of the employer or insurer.” Id. Because the




       2
          See Miss. Power Co. v. Jones, 369 So. 2d 1381, 1387-88 (Miss. 1979) (holding that
insurer could be reimbursed only out of punitive damages recovered by employee); Litton
Sys., Inc. v. Murphree, 301 So. 2d 850, 852-53 (Miss. 1974) (holding that it was error for
the trial court to deny intervention and also that Section 71-3-71 unambiguously allows for
reimbursement from wrongful-death beneficiaries); Merchants Co. v. Hutchinson, 199 So.
2d 813, 820 (Miss. 1967) (holding that, because workers’ compensation statute was
unambiguous, it was unnecessary and erroneous to allow intervening insurer to introduce
prejudicial evidence related to its subrogation claim).

                                             10
unapproved settlement prevented the insurer from having the opportunity to join, we held

that the settlement was invalid and void. Id.

¶ 20.   Liberty Mutual also cites McCluskey v. Thompson, in which the employer and its

insurer who were wrongly named as defendants in the third-party action sought dismissal

“without prejudice to their rights to later intervene as plaintiffs under section 71-3-71 . . . .”

McCluskey, 363 So. 2d 256, 257-58 (Miss. 1978). However, the trial court erroneously

ordered that they join in the action within thirty days or have their subrogation claim barred.

Id. at 258. We simply reiterated that intervention is optional and that the statute does not

require intervention within a specified time period. Id. at 265. We did not decide, however,

that an employer can still be reimbursed if it exercises its option not to intervene.

¶21.    To the contrary, we have on multiple occasions construed Section 71-3-71 according

to its plain language and paraphrased it as requiring intervention before an insurer may be

reimbursed. In Index Drilling Co. v. Williams, we explained that an employee may recover

damages from a third-party tortfeasor even if he or she first accepts compensation benefits,

and that“if the employer or insurer join in such action, they are entitled to be reimbursed for

compensation benefits paid by them from the net proceeds of the suit.” Williams, 242 Miss.

775, 784, 137 So. 2d 525, 528 (1962) (emphasis added). In Richardson v. United States

Fidelity & Guaranty Co., we described the distribution scheme contained in the second

paragraph of Section 71-3-71 as being dependent upon the employer’s or insurer’s

intervention in the suit:

        [W]hen a compensation beneficiary brings an action for his injuries against a
        third-party wrongdoer, and if such employer or insurer join in such action, the
        net proceeds of such action shall be applied as follows: (1) “The reasonable

                                           11
        cost of collection,” and (2) “the remainder, or so much thereof as is necessary,
        shall be used to discharge the legal liability of the employer or insurer,” and
        (3) “any excess shall belong to the injured employee or his dependents.”

Richardson, 233 Miss. 375, 381, 102 So. 2d 368, 370 (1958) (emphasis added).

¶22.    Finally, in Merchants Co. v. Hutchinson, we clearly stated that the right of

reimbursement is premised upon a single requirement:

        All that was necessary for the intervenor to do was to let the court know how
        much had been expended by the insurance carrier, either by a petition to
        intervene or by a petition to join in the cause of action; thenceforth,
        Mississippi Law mandatorily provided for the distribution of any verdict
        rendered.

199 So. 2d 813, 820 (Miss. 1967) (emphasis added). Other cases indicate that an employer

or insurer who is denied intervention will be unable to enforce its statutory right of

subrogation. See Miss. Ins. Guar. Ass’n v. Brewer, 922 So. 2d 807, 813 (Miss. Ct. App.

2005) (holding that denial of a motion to intervene infringed on employer and insurer’s

“statutory right of subrogation for monies paid to” claimant); Miss. Food & Fuel Workers'

Comp. Trust v. Tackett, 778 So. 2d 136, 142-43 (Miss. Ct. App. 2000) (explaining that

intervention is the procedural means by which the subrogation right is protected). See also

McDonald v. E. J. Lavino Co., 430 F.2d 1065, 1072, 1074 (5th Cir. 1970) (allowing

post-judgment intervention because insurer “sought to intervene for the limited purpose of

protecting its subrogation interest in a fund which had not yet been distributed” and stating

that “denial of the motion to intervene [would] harm [the insurer] by frustrating its efforts

to satisfy its subrogation interest”).

¶ 23.   In addition to the plain language of Section 71-3-71, the overwhelming weight of our

caselaw supports our conclusion that Liberty Mutual was required to join or intervene in

                                              12
Shoemake’s Alabama action to enforce its statutory subrogation claim. We note that nothing

prohibits an employer or insurer from entering a contractual subrogation agreement with the

employee whereby joinder or intervention would be unnecessary. However, we emphasize

that an employer or insurer cannot simply sit out a third-party action by the employee and

later, after judgment has been entered and all funds dispersed, sue to enforce its statutory

subrogation claim.3

        2.     The circuit court was not the proper forum for Liberty Mutual’s
               subrogation claim.

¶ 24.   Finally, we stress that the present Mississippi state-court action is contrary to the

intent of Section 71-3-71 and should have been dismissed for lack of jurisdiction even if

Liberty Mutual had intervened in the Alabama action. Section 71-3-71 effectively funnels

all claims of the employer, insurer, or employee against a third party into one action, thereby

preventing the need for multiple lawsuits, as have taken place in this case. As discussed

above, if an employer or insurer does not join or intervene in an employee’s third-party

action, its subrogation claim is waived. As an alternative to the injured worker bringing suit,

Section 71-3-71 allows an employer or insurer who has paid compensation benefits to sue

the third party directly. Miss. Code Ann. § 71-3-71 (Rev. 2011). However, if the employer

or insurer gives the employee notice and an opportunity to be represented in the action, “all



        3
          Our cases liberally have allowed intervention at any point before the final
distribution of funds to prevent a double recovery for the injured worker and ensure that an
employer or insurer who has paid compensation will be fully reimbursed. See Sneed v.
Verdun, 611 So. 2d 947, 948 (Miss. 1992); Miss. Food & Fuel Workers' Comp. Trust v.
Tackett, 778 So. 2d 136, 142 (Miss. Ct. App. 2000). See also McDonald v. E.J. Lavino Co.,
430 F.2d 1065, 1074 (5th Cir. 1970).

                                              13
claims of such compensation beneficiary shall be determined in such action, as well as the

claim of the employer or insurer.” Miss. Code Ann. § 71-3-71 (Rev. 2011). The goal of the

statutory scheme is for all parties who are entitled to recovery in the third-party action and

who have been given notice to have their claims settled in one action, whether the employee,

the employer, or the insurer brings the suit.4

¶ 25.   We affirmed this policy in Owen & Galloway v. Travelers Insurance Co., 499 So.

2d 776 (Miss. 1986). In that case, the attorneys for the employee – who prevailed in his

third-party action in federal court and made reimbursement under Section 71-3-71 – filed a

separate action in chancery court against the intervening insurer, seeking an equitable

division of the attorney fees and costs from the first action. Id. at 777-78. We looked to

language in Section 71-3-71 providing that collection costs (which include attorney fees) are

to be “approved and allowed by the court in which such action is pending,” and reasoned

that “[w]hen a judgment is rendered in a third party suit and all interested parties are properly

before the court, the rights of all parties are determined by the court.” Id. at 778 (quoting

Vardaman S. Dunn, Mississippi Workmen's Compensation, § 235 (3d ed. 1982)). Because

we found “the intention of the Legislature eminently clear that the court in which the action

was pending is the proper forum for issues concerning the distribution of settlement




        4
        The only scenario under which the statute might permit multiple suits is where the
party bringing suit has failed to give to the other party the statutorily required notice and
opportunity to join. This situation is not before us in this case, however, and does not change
the underlying objective of the statute for all claims to be heard together expeditiously and
resolved in a single action.

                                               14
proceeds,” we held that the chancery court lacked jurisdiction over the second action. Id. at

779.

¶ 26.   Procedurally, Liberty Mutual should have intervened in the Alabama action and then

tried to persuade the Alabama court to apply Mississippi law to its subrogation claim. This

would have been a difficult burden, as Alabama consistently has applied the lex loci delicti

rule in third-party tort claims brought by an out-of-state worker who had availed himself of

another state’s workers’ compensation statute. Ne. Utils., Inc. v. Pittman Trucking Co., 595

So. 2d 1351, 1353 (Ala. 1992); Powell v. Sappington, 495 So. 2d 569, 570 (Ala. 1986).

Regardless, Liberty Mutual waived its right seek to have Mississippi law applied to its claim

by choosing not to join or intervene in the Alabama action. It cannot now, having failed to

follow the procedure set out in Section 71-3-71, enforce in a second lawsuit a subrogation

claim which arose only under that section.




                                     CONCLUSION

¶ 27.   Liberty Mutual waived its right to judicial enforcement of its statutory subrogation

claim by failing to join or intervene in the Alabama action. This opinion should not be

construed as a retreat from our longstanding policy that an injured worker should not receive

a double recovery under our workers’ compensation statute. See Sawyer v. Dependents of

Head, 510 So. 2d 472, 477-78 (Miss. 1987). Instead, because Liberty Mutual slept on its

rights while Shoemake’s third-party action was adjudicated in Alabama, it forewent its

rights. Accordingly, Liberty Mutual is not entitled to recover additional funds from



                                             15
Shoemake. We reverse the Court of Appeals’ judgment and reinstate and affirm the

judgment of the Circuit Court.

¶28. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE
JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY IS REINSTATED
AND AFFIRMED.

    WALLER, CJ., RANDOLPH, P.J., KITCHENS, PIERCE, KING AND
COLEMAN, JJ., CONCUR. LAMAR, J., CONCURS IN PART AND IN RESULT
WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, P.J., NOT
PARTICIPATING.




                                      16
