On June 27, 2013, the Council of the District of Columbia enacted emergency and temporary legislation resulting in an amendment to § 32-1535 which narrows the window during which a workers’ compensation carrier has to file a third-party action. An injured employee had six months after accepting a workers’ compensation award in which to file a third-party lawsuit against a responsible tortfeasor, after which the right to file the third-party action is assigned to the workers’ compensation carrier. In other words, the employee had a very short time period in which to file suit. The Council acted to amend § 32-1535(b) to add the following:
If the employer fails to commence an action against such third person within 90 days after the cause of action is assigned under this section, the right to bring the action shall revert to the person entitled to compensation.
In order to match the federal statute of limitations for private-sector employees, the Council eliminated the employee’s short fuse creating an even shorter fuse for the subrogated employer or workers’ compensation carrier. The carrier now has only 90 days after the assignment in which to file a third-party subrogation suit. If it does not do so, the right to bring the third-party action automatically reverts back to the employee. Previously, the right remained with the subrogated carrier for the duration of the three-year statute of limitations for negligence actions.
Here is where the story gets interesting. The new law was signed by the mayor on July 24, 2013 and, because this was an emergency Act, will remain in effect for no longer than 90 days, as provided for with emergency Acts within § 412(a) of the District of Columbia Home Rule. 9 D.C. Official Code § 1-204.12(a). Why would the D.C. Council enact a law which is in effect for only 90 days? The answer may be more interesting than the amendment itself and goes to the heart of why things are dysfunctional in Washington, D.C.
How a Washington, D.C. Council Bill Becomes Law
Even astute students of history have a difficult time understanding why Washington is in the District of Columbia. Why Columbia? Is it a colony of the South American country by the same name? The answer underlies why the above bill was passed first as an emergency Act.
Founded in 1791, the District of Columbia is a unique federal district created specifically to be the seat of U.S. government. It takes up exactly the same 68 square miles as the city of Washington, which is the only city created by the U.S. Constitution. Therefore, you could refer to it as either “D.C.” or “Washington” and be correct either way. The name “Columbia” was an old poetic reference to America just like “the States” or “Uncle Sam” is today. The Vice President’s anthem is still “Hail Columbia” as opposed to “Hail to the Chief.” The CBS television network used to be called “Columbia Broadcasting System” for the same reason. What’s more, it is also a reference to Christopher Columbus, and the construction of the White House began on the 300th anniversary of the explorer’s first voyage.
Washington, D.C. is governed by a Council, rather than a state legislature. Thirteen members make up the Council: a representative (Ward Members) elected from each of the eight wards and five members (At-Large Members), including the chairman, elected at large. Much to the chagrin and angst of Washington’s municipal government, creating new law is not easy or logical. A proposed bill can be introduced by a Council member or charter independent agencies. It is assigned to a committee with expertise on the subject, and the committee may choose to do nothing, in which case the bill dies. If the bill is voted out of committee it goes to a special committee known as the Committee of the Whole – or “COW” for short. The COW votes to “agendize” a bill by placing it on an upcoming agenda of the Council. If the bill is approved by Council, it is placed on the agenda for the next Council meeting and considered for a second time. If approved a second time, it is sent to the mayor of Washington D.C. for signature. The mayor can (1) sign the bill, (2) allow the bill to become law without his signature, or (3) veto the bill. If vetoed, the Council will consider the bill for a third time and can pass it with a 2/3 majority. If the bill is signed by the mayor (as the amended § 32-1535 above has been), it still doesn’t become law. It must first be sent to the U.S. House of Representatives and the U.S. Senate for a period of 30 days. During this period, Congress can enact a joint resolution disapproving the Council’s new law and, if signed by the President, the law is prevented from being enacted. If no joint resolution of Congress is forthcoming, the bill becomes law.
What makes District of Columbia legislation even more complicated is the time it takes to get all of this done. In most municipalities, ordinances become law within a month or two. Not so in Washington. Because of the long and time-consuming path a bill must take to become law under the District’s Charter, Congress has provided a mechanism whereby the Council may enact legislation quickly, on a short-term basis. The D.C. Charter allows the Council to enact special “emergency” legislation without the need for Council’s “second reading” and without the need for a 30 day congressional review. An emergency bill does not have to go to committee and does not have to go through the COW process. However, it is only in effect for 90 days. In order to address the obvious problem of emergency laws expiring after 90 days, the Council can also pass temporary legislation introduced and passed at the same time as the emergency legislation. The temporary legislation must go through the same process as permanent legislation, but is only in effect for 225 days, sufficient time for the Council to enact permanent legislation.
The amendment to § 32-1535 is not an emergency bill, but permanent proposed legislation. This means that once passed by the Council, it goes to Congress. The bill is non-controversial, and should pass without problem. Once it does, an employee may file a third-party action within six months following a compensation award. If the employee does not proceed with action against the third party, the rights to take action against that party are assigned to the employee and the workers’ compensation carrier. Under the new temporary legislation, the carrier has 90 days to file a third-party subrogation action. If the carrier does not file within that time period, the right to file reverts back to the employee as long as the three year statute of limitations has not expired.
The lesson for subrogation professionals hidden within the muck and sausage-making of the Washington legislative process is that a carrier handling a D.C. compensation claim will soon have a very short window within which to pursue a third-party subrogation action not pursued by the injured employee.
If you should have any questions regarding this article or subrogation in general, please contact Gary Wickert at gwickert@mwl-law.com.
