Derivative Workers’ Compensation Subrogation and Mootness After Dismissal of the Employee’s Tort Claim: Commentary on Zurich American Insurance Co. v. Walker

I. Introduction

This commentary examines the Eleventh Circuit’s unpublished per curiam decision in Zurich American Insurance Company v. Jerry Donald Walker, No. 24‑12085, an appeal from the United States District Court for the Middle District of Alabama. Although marked “NOT FOR PUBLICATION,” the opinion provides a clear and pointed illustration of several important principles:

The strictly derivative nature of a workers’ compensation carrier’s subrogation rights under Alabama law;
The interaction between Article III mootness and interventions that are purely lien/subrogation based;
The consequences of statutes of limitation and procedural missteps for both employees and their insurers; and
The limited role of equitable arguments and conjectured legislative “intent” in the face of clear procedural rules.

The case arises from an April 18, 2018 motor vehicle collision in Alabama involving:

Robert James Blanchard, a Louisiana resident and employee of Linden Bulk Transportation, LLC;
Jerry Donald Walker, an Alabama resident and alleged tortfeasor;
Allstate Insurance Company, Walker’s liability insurer (later dropped as a party);
Ace American Insurance Company, Linden’s underinsured motorist (“UIM”) carrier; and
Zurich American Insurance Company (“Zurich”), Linden’s workers’ compensation carrier.

Blanchard, injured in the collision while acting within the scope of his employment, received workers’ compensation and medical benefits from Zurich. He then pursued a third-party negligence action in federal court against Walker, Allstate, and Ace. Zurich intervened to protect its lien and subrogation interests in any recovery by Blanchard.

The litigation history became procedurally tangled: an initial diversity suit was dismissed without prejudice for jurisdictional pleading defects; a second, “nearly identical” suit was filed but after Alabama’s two-year statute of limitations expired; claims against Walker were dismissed as untimely; the UIM claim was settled; and a joint stipulation dismissed all remaining claims “except” Zurich’s supposed claim against Walker.

On appeal, Zurich contended that its complaint in intervention stated a live, enforceable claim against Walker, independent of the fate of Blanchard’s underlying tort claims. The Eleventh Circuit disagreed, holding that:

Zurich’s rights were wholly derivative of Blanchard’s and depended on his ability to recover against Walker; and
Once Blanchard’s claims were dismissed as time-barred and Zurich waived its reimbursement rights against the UIM settlement, nothing remained for the court to adjudicate. Zurich’s intervention had become moot.

The decision underscores a stark but legally orthodox message: a subrogee (here, the workers’ compensation carrier) “steps into the shoes” of the subrogor (the injured employee) and cannot walk any farther than those shoes will carry it, procedural deadlines included.

II. Summary of the Opinion

A. Factual and Procedural Background

The essential sequence is as follows:

The accident and compensation payments.
On April 18, 2018, Walker allegedly negligently operated his vehicle in Alabama, colliding with a tractor-trailer driven by Blanchard, a Louisiana resident working for Linden Bulk Transportation. Zurich, as Linden’s workers’ compensation insurer, paid indemnity and medical benefits to Blanchard.
The first lawsuit (Case No. 2:20-cv-265-WKW).
On April 17, 2020—just within the two-year limitations period—Blanchard filed a diversity action in the Middle District of Alabama against Walker, Allstate, and Ace. Zurich moved to intervene and filed a “Notice of Statutory Lien,” asserting a subrogation interest under Louisiana law (La. R.S. § 23:1102) in any recovery by Blanchard.

Before ruling on Zurich’s intervention motion, the district court dismissed Blanchard’s complaint without prejudice, citing:
- Defective jurisdictional allegations; and
- Blanchard’s failure to comply with court orders to move to amend.
Zurich’s intervention motion was deemed moot in light of that dismissal.
The second lawsuit (Case No. 2:20-cv-696-SRW).
On September 2, 2020, Blanchard filed a “nearly identical” suit in the same court against the same parties, this time correcting the diversity jurisdiction allegations. Allstate was later removed as a defendant.

On November 5, 2020, Zurich again moved to intervene and filed a Notice of Statutory Lien, asserting that:
“Zurich ... ha[d] a subrogation interest, or a lien, in the proceeds as specifically provided for in La. R.S. § 23:1102 ... if the Plaintiff is successful in his action against Defendants.”
The district court granted Zurich’s unopposed motion to intervene on August 31, 2021. Zurich then filed a Complaint in Intervention on October 1, 2021, alleging:
“[P]ursuant to La. R.S. § 23:1102 ... Zurich is entitled to reimbursement and exoneration out of the proceeds of any recovery from the Defendants herein, and to have its rights determined by final judgment of this Honorable Court.”
Dismissal of Blanchard’s claim against Walker and settlement with Ace.
Walker moved to dismiss Blanchard’s claims as barred by Alabama’s two-year statute of limitations for personal injury actions (Ala. Code § 6‑2‑38(l)). The district court agreed and dismissed Blanchard’s claims against Walker “with prejudice.”

Subsequently, Blanchard and Ace settled. Blanchard, Ace, and Zurich filed a joint stipulation dismissing:
“all claims ... except as to the Intervenor's, Zurich American Insurance Company's, claims against Jerry Donald Walker.”
The district court granted the stipulation “on the terms agreed to and set out by the parties,” terminated all deadlines, and administratively closed the case.
Zurich’s motion for reconsideration and Walker’s motion to dismiss.
Zurich sought reconsideration, arguing that the court had inadvertently closed the entire case rather than dismiss only the Blanchard–Ace dispute. Zurich asserted that it still maintained a live claim against Walker.

The district court reopened as to Zurich’s intervention claim and ordered Walker to respond. Walker instead moved to dismiss Zurich’s Complaint in Intervention for failure to state a claim.

On June 11, 2024, the district court granted Walker’s motion and dismissed Zurich’s complaint. It held that:
- Zurich’s claim had become moot once Blanchard’s underlying action against Walker was dismissed and Zurich had waived its reimbursement claim against the Ace settlement; and
- Even if not moot, Zurich’s intervention claim was untimely under the applicable statute of limitations.
The appeal and affirmance.
Zurich appealed, contending that it possessed an independent statutory and subrogation-based claim against Walker that survived dismissal of the employee’s claims. The Eleventh Circuit, after de novo review of the Rule 12(b)(6) dismissal, affirmed.

B. Holding and Core Rationale

The Eleventh Circuit held that Zurich’s Complaint in Intervention was properly dismissed because:

Mootness: Once Blanchard’s negligence claims against Walker were dismissed as untimely, and the UIM claim was settled with Zurich’s waiver of reimbursement, no live case or controversy remained that could yield “meaningful relief” for Zurich. The only potential claim that might have remained—Zurich’s right to reimbursement from the settlement proceeds between Blanchard and Ace—was expressly relinquished in the joint stipulation.
Derivative Subrogation and Limitations: Under Alabama law, Zurich’s subrogation rights were entirely derivative of Blanchard’s rights. Because Blanchard’s claims against Walker were time-barred, Zurich could not, through subrogation or a lien, assert greater or more enduring rights than Blanchard himself possessed. Thus, even if the claim were not moot, Zurich’s attempt to proceed solely against Walker was foreclosed by limitation principles.

In addition, the court explicitly rejected Zurich’s more policy- and fairness-driven arguments:

Walker’s failure to object to intervention earlier did not amount to consent to suit or a waiver of procedural defenses; and
Unsubstantiated assertions about what the Alabama legislature “intended” could not displace settled rules governing subrogation, limitations, and mootness.

III. Precedents and Authorities Cited

A. Federal Pleading and Mootness Standards

The court begins with familiar federal standards governing a Rule 12(b)(6) dismissal:

Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir. 1999) – establishes de novo appellate review of a Rule 12(b)(6) dismissal.
Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) – provide the “plausibility” standard:
A complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”
Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) – reminds that, at the motion to dismiss stage, courts construe allegations in the light most favorable to the plaintiff.
Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257, 1267 (11th Cir. 2020) – supplies the operative mootness standard:
“[A] case must be dismissed as moot if events that occur subsequent to the filing of a lawsuit deprive the court of the ability to give the plaintiff meaningful relief.”

Keohane is particularly important. It frames the doctrinal lens through which the court views Zurich’s intervention: if no realistic judicial order could grant Zurich relief within the confines of substantive law (Alabama tort and subrogation law), then there is no Article III controversy.

B. Alabama Statutes and Case Law

1. Statute of Limitations in Motor Vehicle Negligence

Ala. Code § 6‑2‑38(l):
“All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.”
Davison v. Pogue, 735 So. 2d 1240, 1242 (Ala. Civ. App. 1999) – applies this two-year limitations period specifically to actions arising from alleged negligence in the operation of a motor vehicle.
Singer Asset Fin. Co. v. Connecticut Gen. Life Ins. Co., 975 So. 2d 375, 382 (Ala. Civ. App. 2007) – states that the limitations period begins when the plaintiff’s cause of action “accrues.”
Stephens v. Creel, 429 So. 2d 278, 281 (Ala. 1983) – provides the classic accrual rule:
A cause of action accrues “when the force wrongfully put in motion produces injury.”

Applying these principles, the limitations clock began on the accident date, April 18, 2018. Blanchard’s second lawsuit—filed September 2, 2020—came after the limitations period expired, rendering his claim against Walker time-barred under Alabama law. The opinion treats this as effectively undisputed.

2. Workers’ Compensation Subrogation and Intervention

The key Alabama authorities on workers’ compensation subrogation appear in this passage:

Ala. Code § 25‑5‑11(a) – allows a workers’ compensation insurer to intervene in an employee’s civil action against a third-party tortfeasor:
- for “reimbursement” of compensation benefits paid; and
- to “preserve its subrogation interest” as to medical benefits paid on the employee’s behalf.
Trott v. Brinks, Inc., 972 So. 2d 81 (Ala. 2007) – central to the court’s analysis of subrogation:
- Confirms that, for medical expenses, the Alabama Supreme Court equates statutory “subrogation” with equitable subrogation (972 So. 2d at 85–86).
- Emphasizes the derivative nature of equitable subrogation:
  “Under the equitable doctrine of subrogation, a subrogee steps into the shoes of [the] subrogor and that subrogee only gets those rights that its subrogor has. The subrogee can have no greater rights.”
Ala. Code § 25‑5‑11(d) – referenced in a footnote as a kind of “safety net” for carriers:
In the event the injured employee does not file a civil action against the third party within the limitations period, and the carrier has paid compensation, the carrier “shall be allowed an additional period of six months within which to bring a civil action” against the third party, in the name of the employee or the carrier.

The Eleventh Circuit uses these authorities to emphasize two propositions:

For reimbursement of compensation benefits (indemnity), the carrier’s recovery comes “from recovery in the underlying suit.” No underlying recovery, no reimbursement.
For subrogation (especially for medical benefits), the carrier’s rights are purely derivative. If the employee cannot pursue a claim (e.g., because it is time-barred), then the insurer, stepping into the employee’s shoes, cannot pursue one either—unless it separately and timely avails itself of § 25‑5‑11(d)’s narrow, extra six-month window, which Zurich did not do here.

C. Zurich’s Invocation of Louisiana Statutory Law

Zurich’s filings repeatedly cited Louisiana’s workers’ compensation statute, La. R.S. § 23:1102, as the basis for its “statutory lien” and subrogation rights. The Eleventh Circuit notes these invocations but grounds its analysis in Alabama law, explicitly stating that “the parties do not dispute that Alabama procedural law governs this case.”

The court does not undertake a detailed choice-of-law analysis. Instead, it effectively assumes:

Whatever substantive lien or reimbursement right Zurich may have under Louisiana law is still constrained by:
Alabama’s procedural law; and
Alabama’s governing rules of subrogation and limitation as applied in an Alabama federal forum adjudicating an Alabama accident.

Thus, even if a Louisiana statute grants Zurich a “lien” on Blanchard’s recovery, that lien remains dependent on there being an actual recovery and a timely, viable underlying tort claim under Alabama law.

IV. The Court’s Legal Reasoning

A. The Derivative Nature of Subrogation and Lien Rights

The central doctrinal theme is the nature of Zurich’s interest. By its own description, Zurich:

Asserted a lien on any proceeds Blanchard might recover; and
Claimed a subrogation interest in any cause of action Blanchard held against Walker or Ace.

The court makes two key points:

A lien on recovery necessarily depends on an actual recovery.
The opinion states:
“However, a lien on recovery requires that Blanchard actually recover, and standing in Blanchard's shoes to pursue a claim requires that Blanchard had the ability to pursue a claim on his own. Neither is the case here.”
Once Blanchard’s negligence claim against Walker was dismissed as untimely, there could be no recovery against Walker in that action.
Equitable subrogation is wholly derivative.
Relying heavily on Trott, the court reiterates that a subrogee cannot acquire any right the subrogor does not possess:
“[U]nder the equitable doctrine of subrogation, a subrogee steps into the shoes of [the] subrogor and that subrogee only gets those rights that its subrogor has. The subrogee can have no greater rights.”
Thus, if the employee’s cause of action is barred by limitations or otherwise extinguished, the insurer’s subrogated claim is similarly extinguished.

In short, Zurich’s position was untenable because it tried to turn a derivative right (lien/subrogation) into an independent cause of action against Walker after Blanchard had lost his own right to sue Walker in that forum.

B. Mootness: No Remaining “Meaningful Relief” for Zurich

Having established that Zurich’s rights were dependent on Blanchard’s, the court turns to mootness. The question: Could the district court still give Zurich “meaningful relief” once the underlying claims fell away?

The answer is no, for several reasons:

No remaining claim against Walker by Blanchard.
Blanchard’s negligence claim against Walker was dismissed with prejudice as untimely. That dismissal removed the very claim to which Zurich’s subrogation and lien rights attached.
UIM settlement and waiver of reimbursement rights.
The only remaining monetary source Zurich might realistically reach was the settlement between Blanchard and Ace. But Zurich, Blanchard, and Ace jointly stipulated to dismissal of “all claims” except Zurich’s purported claims against Walker. As the Eleventh Circuit puts it:
“In other words, the only claim still in existence after Ace and Blanchard settled the claim between them was Zurich's claim against Blanchard for reimbursement out of that settlement. Zurich waived that claim in the joint stipulation for dismissal…”
Zurich had no actual claim against Walker at that juncture.
The court bluntly concludes:
“In reality, Zurich had no claim against Walker at that time.”
Without a valid underlying cause of action (because of limitations) and without any preserved right to reimbursement from existing settlement funds, there was simply nothing for Zurich to recover.

Applying Keohane’s standard, the panel holds that the dismissal of the underlying suit “deprive[d] the court of the ability to give [Zurich] meaningful relief.” The result: the Complaint in Intervention had become moot and was properly dismissed.

C. Limitations as an Alternative Ground

Although the Eleventh Circuit’s rationale centers on mootness and the derivative nature of subrogation, it also endorses the district court’s alternative holding: even if Zurich’s intervention were not moot, its claims would be barred by the statute of limitations.

The logic is straightforward:

The underlying tort cause of action accrued on April 18, 2018 (date of injury).
Under Ala. Code § 6‑2‑38(l), Blanchard’s suit had to be filed within two years—by April 18, 2020.
The “second” lawsuit, which became the operative case for Zurich’s intervention, was not filed until September 2, 2020, past that deadline.
Because Zurich’s subrogation rights are derivative, a time-bar on Blanchard’s claim likewise bars Zurich’s claim, absent some distinct statutory basis (e.g., § 25‑5‑11(d)’s six-month period), which Zurich did not invoke or use.

The court does not dwell on the potential argument that the first lawsuit, filed within the limitations period and later dismissed without prejudice, might preserve or toll the claim for refiling. Under Alabama law, absent a specific “saving” statute, a dismissal without prejudice does not toll or extend the limitations period; a new suit filed after the period runs is untimely. The opinion assumes this framework and proceeds accordingly.

D. Rejection of Zurich’s Procedural and Policy Arguments

Zurich advanced several arguments that the court characterized as “particularly convoluted.” Two are specifically addressed and rejected.

1. Walker’s Failure to Object to Intervention or Move to Dismiss Earlier

Zurich argued that Walker’s initial failure to contest Zurich’s intervention or to seek dismissal of Zurich’s claims when Blanchard’s claims were dismissed should be read as evidence that Walker was content to remain a defendant to Zurich’s claims—effectively waiving certain defenses.

The panel dismisses this as reading far too much into Walker’s litigation posture:

“[That] reads a lot into the actions of the defendant and, regardless, is not a reason for the Court to ignore the procedural rules it operates under.”

In other words, a defendant does not forfeit the ability to invoke mootness or limitations merely by not objecting to intervention or failing to move earlier; jurisdictional and time-bar issues cannot be waived by silence in the way Zurich suggests.

2. Assertions About Legislative “Intent” Without Supporting Authority

Zurich also repeatedly asserted that the outcome here was “not intended by the Alabama legislature.” This appears to be an equity-based plea against allowing a workers’ compensation carrier to lose its reimbursement rights because of the employee’s procedural missteps and limitations issues.

The Eleventh Circuit finds these assertions legally irrelevant and unpersuasive:

“Zurich also made multiple statements such as ‘this result [was] not intended by the Alabama legislature,’ but it provided no support or citation for such claims. We cannot rely on bare conjecture about the drafters of a statute simply because a party is upset with where the statute leaves it.”

The court reaffirms a basic interpretive discipline: where the text and structure of the statute, as applied through precedents like Trott, yield a clear distribution of rights and deadlines, courts do not override that framework based on unsupported speculation about legislative preferences.

V. Impact and Implications

A. For Workers’ Compensation Carriers

The decision, although unpublished, sends a strong practical message to workers’ compensation carriers litigating in Alabama:

Subrogation Rights Are Strictly Derivative.
Carriers cannot treat statutory subrogation provisions or “liens” as independent causes of action divorced from the viability of the employee’s underlying tort claim. If the employee’s claim is time-barred, settled in a way that forecloses further action, or otherwise extinguished, the carrier’s subrogated claim generally dies with it.
Vigilance About Statutes of Limitation Is Essential.
If the employee fails to file a timely suit, or if a timely suit is dismissed and not properly re-alleged within the limitations period, the carrier must itself consider using the six-month window in Ala. Code § 25‑5‑11(d) to file a direct action against the tortfeasor. The opinion mentions § 25‑5‑11(d) as a theoretical device but notes that Zurich did not rely on it.
Be Careful What You Stipulate Away.
Zurich’s joint stipulation dismissed all claims except its supposed claims against Walker. The Eleventh Circuit interprets that stipulation as a waiver of Zurich’s only genuine remaining right—reimbursement from the UIM settlement. This illustrates that carriers must very carefully draft and review any joint stipulations of dismissal to ensure they do not inadvertently waive vital reimbursement rights.

B. For Plaintiffs and Their Counsel

The case also underscores the potentially dramatic consequences of procedural missteps by injured plaintiffs:

Jurisdictional Pleading Errors Can Be Fatal.
Blanchard filed the first suit within the limitations period but failed to properly allege diversity and then failed to heed the court’s order to amend. The resulting dismissal without prejudice, when followed by an out‑of‑time refiling, exposed his tort claims to a limitations defense and ultimately barred them.
Ripple Effects on Related Parties.
Because Zurich’s rights were derivative of Blanchard’s, his procedural missteps and limitations issues also undermined the carrier’s ability to recover. Poor management of the initial lawsuit thus harmed not only the plaintiff but also a lienholder/subrogee.
Careful Case Management and Compliance.
Counsel must treat jurisdictional allegations and court orders to amend as critical, not formalities. Failure to address such issues in a timely and accurate manner can cost the client—and aligned entities—substantial amounts.

C. For Intervenors and Federal Procedure

The opinion is instructive on the status of intervenors whose claims are purely parasitic on the main action:

Intervention Does Not Create Substantive Rights.
Granting a motion to intervene—especially unopposed—simply allows the intervenor to participate in the existing litigation. It does not transform derivative interests (like liens or subrogation claims) into freestanding causes of action that survive the demise of the underlying case.
Mootness Applies Equally to Intervenors.
If the original case is resolved in a manner that leaves no live controversy and no viable form of relief for the intervenor, the intervenor’s claims are likewise moot. Article III’s case-or-controversy requirement applies to all parties, including intervenors.

D. Multi-State and Choice-of-Law Considerations

Although the court does not engage in an extended choice-of-law analysis, there are quiet but important cross-border aspects:

The injured worker is a Louisiana resident; Zurich repeatedly invokes Louisiana’s workers’ compensation statute.
The accident occurred in Alabama; the action is in an Alabama federal court; Alabama’s tort and procedural law, including its statute of limitations and definition of subrogation, govern the viability of the third-party negligence claim.

The upshot is that out-of-state carriers paying benefits under another state’s workers’ compensation regime must still navigate the host state’s rules when their reimbursement/subrogation claims are pursued via a third-party tort action in the host state’s courts. An expansive lien right under home-state law does not override the host state’s:

statutes of limitation,
rules governing equitable subrogation, and
jurisdictional and procedural requirements.

VI. Clarifying Complex Legal Concepts

A. Intervention and Complaints in Intervention

Intervention is the process by which a non-party asks to become a party to ongoing litigation (usually under Federal Rule of Civil Procedure 24). An intervenor often has some interest that may be affected by the outcome—such as an insurer with subrogation rights.

A Complaint in Intervention is the pleading through which the intervenor sets out its claims. But intervention is procedural: it does not itself create new substantive rights. The intervenor still must have a viable cause of action under the governing substantive law (here, Alabama negligence and subrogation law).

B. Subrogation, Reimbursement, and Liens

These related concepts are often conflated; this case helps to parse them:

Subrogation: The insurer “steps into the shoes” of the insured (or employer) and acquires the same rights the injured party would have had against a third party. Under equitable subrogation, the insurer’s right is strictly no greater than the insured’s right. Defenses that could be raised against the insured (e.g., limitations, immunity) can also be raised against the insurer.
Reimbursement: Many workers’ compensation statutes give the carrier a right to be repaid (reimbursed) out of any third-party recovery obtained by the employee. This is often expressed as a lien-like right to a portion of settlement or judgment proceeds.
Lien: A lien is a specific right to reach certain property (here, settlement or judgment proceeds) to satisfy an obligation (here, repayment of benefits). A lien on “any recovery” assumes that a “recovery” actually occurs. If there is no underlying judgment or settlement against a particular defendant, a lien against that defendant’s hypothetical funds has nothing to attach to.

Here, Zurich asserted:

A lien on any proceeds Blanchard might recover; and
A subrogation right to pursue Blanchard’s claim if necessary.

Both are dependent on Blanchard having:

A valid, timely claim; and
An actual recovery (for reimbursement via a lien).

C. Mootness

Mootness is a constitutional doctrine. Federal courts can decide only ongoing “cases” or “controversies.” If events during the litigation make it impossible for the court to grant effective relief, the case is moot and must be dismissed.

In this case, by the time Zurich’s appeal was considered:

Blanchard’s claims against Walker were dismissed with prejudice as time-barred;
Blanchard and Ace had settled; and
Zurich had waived its right to reimbursement from that settlement.

Given that Zurich’s rights were derivative and its only live reimbursement claim had been waived, there was nothing meaningful the court could still award. Any judgment in favor of Zurich against Walker would be legally unsound because Blanchard’s underlying claim could not be resurrected. Accordingly, mootness applied.

D. Dismissal “Without Prejudice” and Limitations

A dismissal without prejudice means the plaintiff is not barred from filing a new lawsuit on the same claim in principle. But it does not rewrite or toll the statute of limitations. If the limitations period has expired, refiling is still barred, even if the earlier dismissal was “without prejudice.”

Blanchard’s first lawsuit was timely but dismissed without prejudice for jurisdictional deficiencies and failure to amend. By the time he filed the second suit, the two-year limitations period under Ala. Code § 6‑2‑38(l) had already run. Thus, the new suit was untimely, and Walker successfully raised the statute of limitations defense.

E. The Six-Month Window in Ala. Code § 25‑5‑11(d)

Alabama recognizes that an injured worker may sometimes fail to timely bring a third-party action, even though the workers’ compensation carrier has paid benefits that, in fairness, ought to be recovered from the tortfeasor if possible. Section 25‑5‑11(d) therefore provides:

If the injured employee does not file a civil action against the third party within the time allowed by law, the compensation carrier, having paid benefits, “shall be allowed an additional period of six months within which to bring a civil action against the other party for damages” on account of the injury, in the name of the employee or the carrier.

This provision gives carriers a short, independent window of opportunity, but it:

Is time-limited (only six months beyond the statutory period);
Requires the carrier to act affirmatively; and
Does not otherwise expand the underlying substantive rights beyond what the employee would have possessed within the proper timeframe.

The Eleventh Circuit mentions § 25‑5‑11(d) only in passing, and there is no indication that Zurich attempted to invoke that provision or file a stand-alone action within that six-month period. The court cites it merely to illustrate that, outside these narrow statutory channels, subrogation cannot create greater rights than the subrogor has.

VII. Conclusion

The Eleventh Circuit’s decision in Zurich American Insurance Co. v. Walker, though unpublished, crystallizes a set of foundational doctrines in a concrete setting:

Subrogation is strictly derivative. A workers’ compensation carrier in Alabama, even when armed with statutory lien language and subrogation provisions (whether under Alabama or another state’s law), cannot acquire a stronger or more enduring right than the injured employee. If the employee’s action is time-barred or extinguished, the carrier’s derivative claim generally follows suit.
Reimbursement rights depend on an actual recovery. A lien on “any recovery” is a lien on something real, not hypothetical. No judgment or settlement against a tortfeasor means nothing for the lien to attach to. Once Zurich waived its reimbursement rights against the UIM settlement, its last remaining practical source of funds evaporated.
Mootness constrains intervenors just as it does primary parties. Intervention does not immunize a derivative claimant from mootness. When no judicial order could provide the intervenor meaningful relief within the confines of governing substantive law, the court lacks jurisdiction and must dismiss.
Procedural and limitations rules are not overridden by fairness arguments. Zurich’s appeals to legislative “intent” and to Walker’s earlier litigation silence found no purchase. In the absence of textual or precedential support, conjectural fairness arguments cannot displace statutes of limitation, rules of subrogation, or constitutional justiciability requirements.

Practitioners—particularly those representing insurers, injured workers, and subrogated carriers—should treat this case as a cautionary example. A timely, properly pleaded underlying action is essential not only for the injured employee’s recovery but also for preserving the reimbursement and subrogation rights of workers’ compensation carriers and other lienholders. Intervention, while an important procedural tool, cannot manufacture substantive rights where time, doctrine, or prior stipulations have extinguished them.

Derivative Workers’ Compensation Subrogation and Mootness After Dismissal of the Employee’s Tort Claim: Commentary on Zurich American Insurance Co. v. Walker (11th Cir.)