PUBLIX SUPER MARKETS, INC., AND THE HARTFORD INSURANCE GROUP, APPELLANTS,
v.
JACOBO GOMIS AND DAVID S. GOLD AND TRAVELERS INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLEES

Fla. 3d DCA | 1979-02-20
No. 78-1339
Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
367 So. 2d 722 Florida District Court of Appeal, Third District (1979) Positive Treatment
Cited by 4 cases
Opinion of the Court
SCHWARTZ, Judge.

SCHWARTZ, Judge.

The plaintiff did not, as Section 440-39(3)(a), Florida Statutes (1975) requires, sustain his burden of proof or “demonstrate to the court” that he “did not recover the full value of damages sustained” in his action against a third-party tortfeasor. Nevertheless, the trial judge awarded the appellants, who are the plaintiff’s employer and workmen’s compensation carrier, only 15% of the compensation benefits paid and payable, rather than the 50%1 “pro rata” share of the plaintiff’s benefits then required by the statute in the absence of such a showing. This was error. Ramar-Dooley Construction Co. v. Norris, 341 So. 2d 546 (Fla.2d DCA 1977). The order on petition for equitable distribution now under review is therefore reversed and the cause remanded with directions to conduct a new hearing on the plaintiff’s petition.

Reversed and remanded.

. A subsequent amendment to F.S. § 440.39(3)(a), effective July 1, 1977, changed the 50% figure to 100%.

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  • Publix Super Mkts., Inc. v. Jacobo Gomis, 379 So. 2d 130 (Fla. 3d DCA 1979)
    …PER CURIAM. Following an opinion reported in Publix Super Markets, Inc. v. Gomis, 367 So. 2d 722 (Fla.3d DCA 1979), the matter reoceurred in [*131] the trial court for a determination of whether or not the claimant under workmen’s compensation had received less than the full value of the damages sustained from a third party tort-feasor. The tri…
  • Tohn v. Montgomery Elevator Co., 400 So. 2d 1061 (Fla. 3d DCA 1981)
    …the balance to be delivered to the plaintiff. This ruling was in accordance with the statute as it then existed and should be affirmed. Ramar-Dooley Construction Co. v. Norris, 341 So. 2d 546 (Fla. 2d DCA 1977); Pubiix Super Markets, Inc. v. Gomis, 367 So. 2d 722 (Fla.3d DCA 1979); Maryland Casualty Company v. Whitley, 375 So. 2d 18 (Fla. 1st DCA 1979). This is as it should be. The injured party has received full compensation; her award has not been reduced by any comparative negligence; it was within the ma…

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