EMPLOYERS INSURANCE COMPANY OF ALABAMA, APPELLANT,
v.
FRANK MILLER, WACO SCAFFOLDING OF FLORIDA, INC., A FLORIDA CORPORATION, WACO MANUFACTURING COMPANY, A FOREIGN CORPORATION, APPELLEES
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A workmen's compensation insurance carrier appeals an equitable distribution order that awarded it only $1,500 from an employee's third-party tort recovery. The Florida District Court of Appeal affirmed the trial judge's discretionary award, holding that the statute gave courts broad discretion in determining pro rata shares and that the amendment to section 440.39(3) did not apply retroactively to pre-July 1959 injuries.
The trial judge did not abuse his discretion in awarding $1,500, as the statute left computation to the court's discretion with no prescribed formula, and the carrier failed to demonstrate the award was inequitable. The amended section 440.39(3) did not apply retroactively to injuries occurring before its effective date.
“no particular yardstick or formula for computation was prescribed in § 440.39, supra, but left it in the discretion of the court to determine”
Establishes that the statute gave trial courts broad discretion in equitable distribution proceedings without mandating a specific calculation method.
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Join FLexlaw to unlock all legal intelligenceAn employee was injured in 1957 and subsequently recovered in a personal injury tort action against third-party tort-feasors. The compensation carrier…
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The appellant, a workmen’s compensation insurance carrier, appeals from an order of equitable distribution made after recovery by the employee in a personal injurj tort action against third-party tort-feasors. The trial judge awarded the compensation carrier the sum of $1,500 as. a pro rata share of the employee’s recovery. The *814carrier filed a first amended notice of compensation lien on October 9, 1958, in the personal injury action. The settlement was effected by the employee and recovery had after July 1, 1959. The order of equitable distribution was made January 5, 1960.
The appellant makes two contentions for reversal, i. e., (1) that the amount of $1,500 awarded as pro rata recovery in an equitable distribution proceedings under § 440.-39, Fla.Stat., F.S.A., was an abuse of discretion by. the trial judge; and (2) that the trial judge failed to give effect to the provisions of § 440.39(3), Fla.Stat., F.S.A., as amended, which became effective July 1, 1959.
We have considered the contentions raised by the appellant and find them to be without merit. As to the first contention, the appellant has failed to demonstrate that the trial judge abused his discretion in awarding the sum of $1,500, especially when it is considered that no particular yardstick or formula for computation was prescribed in § 440.39, supra, but left it in the discretion of the court to determine. It has not been demonstrated that the amount awarded in this instance was not equitable or adequate. See Arex Indemnity Co. v. Radin, Fla.1954, 72 So.2d 393.
As to the second question raised, it should be pointed out that the employee was injured in 1957; the compensation lien of the carrier was filed in 1958, and the settlement and recovery had in 1959. This question we feel has already been answered adverse to the appellant’s contention by the Supreme Court of this state in Hecht v. Parkinson, Fla.1954, 70 So.2d 505. See also Brinson v. Southeastern Utilities Service Co., Fla.1954, 72 So.2d 37.
The order appealed should be and it is hereby affirmed.
Affirmed.
HORTON, C. J., and PEARSON and CARROLL, CHAS., JJ., concur.
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Gen. Guar. Ins. Co. v. Moore, 143 So. 2d 541 (Fla. 2d DCA 1962)…. The applicable statute in this case is Section 440.39(4), Florida Statutes, 1957, F.S.A. the law in effect at the time of the injury to Moore. See Hecht v. Parkinson, Fla.1954, 70 So. 2d 505; Employers’ Ins. Co. of Alabama v. Miller, Fla.App.1960, 121 So. 2d 813; Aaron v. Florida Power & Light Co., Fla.App.1961, 126 So. 2d 889. Said subsection (4) reads: “(4) If the injured employee or his dependents, as the case may be, shall fail to bring suit against such third party tort-feasor within one year after t…
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Sec. Mut. Cas. Co. v. Grice, 172 So. 2d 834 (Fla. 2d DCA 1965)…as the court may determine.’ The ‘equitable distribution’ to the carrier rarely equates with or approaches actual compensation outlay. See Arex Indemnity Co. v. Radin, Fla. 1954, 72 So. 2d 393; Employers Insurance Co. of Alabama v. Miller [Fla.App., 121 So. 2d 813], supra. “Such a discrepancy between the two sub-sections as to amounts allowed to be recovered by the carrier is simply legislative encouragement to the injured workman to bring his common law action against third party tort-feasors with minimum d…
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C & T Erectors, Inc. v. Case, 481 So. 2d 499 (Fla. 2d DCA 1985)…ct when the injury Case sustained occurred, i.e., Section 440.39(3)(a), Florida Statutes (1981), as it was amended in 1977.2 Id.; Aaron v. Florida Power & Light Co., 126 So. 2d 889 (Fla.3d DCA 1961); Employers Insurance Company of Alabama v. Miller, 121 So. 2d 813 (Fla.3d DCA 1960). The statute in that form contemplates that once the attorney’s fee and costs stemming from the third party action are deducted from the tort recovery, the remaining amount represents the outer limit from which the carrier’s lien c…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brinson v. Se. Utils. Serv. Co., 72 So. 2d 37 (Fla. 1954)
- Dickler v. Gates, 72 So. 2d 393 (Fla. 1954)
- Arex Indem. Co. v. Radin, 72 So. 2d 393 (Fla. 1954)
- Hecht v. Parkinson, 70 So. 2d 505 (Fla. 1954)