UTICA MUTUAL INSURANCE COMPANY, ETC., APPELLANT,
v.
JOHN H. MITCHELL, ET UX., APPELLEES
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A workers' compensation carrier appealed a circuit court judgment denying its claim for an equitable distribution of settlement proceeds from a third-party tort settlement. The court affirmed the lower court's finding that the carrier failed to present competent evidence of the amounts it had paid or would pay in the future to support its lien claim.
The court affirmed the trial court's determination that the carrier failed to present competent evidence proving the value of its lien and therefore was not entitled to any recovery from the settlement proceeds. The court found the facts distinguishable from State v. Caldwell because the affidavit was not shown to have been before the court or considered during the hearing.
[1] A compensation carrier seeking equitable distribution of settlement proceeds from a third-party tortfeasor must present competent evidence of the amounts paid and to be p…
[2] An affidavit filed in the court file during the pleading stage is not automatically considered by the court or parties during an evidentiary hearing.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We have carefully reviewed the transcript of the evidentiary hearing before the trial court and cannot find error in the court's determination that no competent evidence was submitted to prove what the compensation carrier had paid to appellee and would be required to pay him in the future.”
Establishes the appellate court's standard of review and the basis for affirming the trial court's finding regarding lack of competent evidence.
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Join FLexlaw to unlock all legal intelligenceAppellee Mitchell was injured and received a settlement from third-party tort-feasors in a federal district court action. The compensation carrier (Ut…
The full statement of facts, procedural history, and disposition for this case are member content.
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ORFINGER, Judge.
The judgment appealed from determined that the appellant, the compensation carrier for appellee’s employer, was not entitled to an equitable distribution of the proceeds of a settlement received by appellee from the third party tort-feasors alleged to be responsible for appellee’s injuries.1
The tort action had been prosecuted in the federal district court for the Middle District of Florida. The action below was in the circuit court of Brevard County for a declaratory judgment to determine what, if any, rights the compensation carrier had in the settlement proceeds. The circuit court declared appellant’s lien invalid, and further held that it could not recover any part of its claimed lien for failure “to present any competent evidence as to the value of the lien."
We have carefully reviewed the transcript of the evidentiary hearing before the trial court and cannot find error in the court’s determination that no competent evidence was submitted to prove what the compensation carrier had paid to appellee and would be required to pay him in the future.
Appellant relies on State v. Caldwell, 388 So. 2d 640 (Fla. 1st DCA 1980) for the proposition that an affidavit may be relied on when it is actually before the court although not formally introduced in evidence. The affidavit in question here is one signed by appellant’s attorney of record setting forth the amounts already advanced by appellant and those which are estimated to be advanced in the future. Without commenting on the competency of the affidavit by the attorney as evidence of the amounts paid and to be paid by his client, and although the affidavit was filed in the court file during the pleading stage of this controversy, there is nothing in the record to show that it was before the court or considered by the court or the parties during the hearing. Thus the facts here are distinguishable from Caldwell where the appellate court found that the Judge of Industrial Claims considered the affidavit in question, that all the witnesses testified with reference to it and that counsel for the parties referred to the affidavit as having been “submitted” to the Judge.
Sub judice, the trial court specifically found the absence of competent evidence to prove the value of appellant’s claim. This would negate any reliance on the affidavit. Since we cannot say that he erred on this point, we need not discuss the questions raised as to the validity of the lien, and the judgment appealed from is affirmed.
AFFIRMED.
COBB and FRANK D. UPCHURCH, Jr., JJ., concur. . See sec. 440.39(3)(a) and (b), Fla.Stat. (1975).