McKinnon

In this matter involving workers’ compensation and ah employer’s subrogation action against an alleged third party tortfeasor, we construe the employer/employee notice and consent obligations of Labor'Code sections 3853, 3859 and 3860, subdivision (a).

We conclude that when an employer fails to adequately notify its employee of its subrogation lawsuit and proposed settlement involving the alleged third party tortfeasor and fails to obtain the employee’s consent to the settlement of that suit, and when the settling alleged third party tortfeasor, prior to settlement, was or reasonably should have been aware of the possibility of the employee’s claim for damages against the tortfeasor, the alleged tortfeasor cannot use the mere settlement and dismissal of the employer’s subrogation action to bar the employee from maintaining her own action for damages against the alleged tortfeasor. (§§ 3853, 3859, 3860, subd. (a).) The employee’s action for damages against the alleged tortfeasor, however, must account for any workers’ compensation benefits paid to the employee, or to be paid, so as to preclude double recovery for the employee and double liability for the…