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Astudillo v. Duggleby
When an injured employee prosecutes an action against a third party tortfeasor, Labor Code section 3856 authorizes the employee to recover his or her litigation expenses and attorney fees from the judgment before the employer may exert a lien on the judgment to recover the amount of workers compensation benefits expended on the employees behalf. In this case, the third party tortfeasor was sued by the injured employee and his employer. The employer settled its action and assigned its lien to the third party tortfeasor. The jurys verdict was less than the amount of the employers lien. On appeal, the third party tortfeasor contends the trial court erred by applying section 3856 to award the employee his costs and attorney fees from the judgment before offsetting the judgment with the lien because the employee did not benefit from the judgment and because the employer actively participated in the litigation. Court find no error and affirm the judgment.

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