HENRY G. EDMONDSON, APPELLANT,
v.
AVIS MITCHELL SWOPE AND NATIONWIDE GENERAL INSURANCE COMPANY, APPELLEES
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An injured employee appealed a workers' compensation proration order requiring him to reimburse his employer's insurance carrier $4,365.22 from his third-party settlement. The court affirmed the proration under Florida Statute § 440.39(3)(a), finding the employee failed to meet his burden of proving he did not recover the full value of his damages due to comparative negligence or insurance limits.
The court affirmed the proration order, holding that under § 440.39(3)(a), the employer's carrier is entitled to recover 50% of benefits paid unless the employee demonstrates he did not recover the full value of damages due to comparative negligence or insurance limits. The employee bore the burden of proof and failed to present evidence regarding collectibility, thus the carrier was entitled to reimbursement. The denial of attorney's fees was also proper.
[1] An employer or workers' compensation carrier is entitled to recover 50 percent of benefits paid to an employee from a third-party recovery, unless the employee demonstrat…
[2] The burden of proof rests upon the employee to demonstrate that the full value of damages was not recovered from a third-party tortfeasor.
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Join FLexlaw to unlock all legal intelligence“The employer or carrier shall recover 50 percent of what it has paid and future benefits to be paid unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee.”
Establishes the statutory framework for proration under § 440.39(3)(a) and places the burden of proof on the employee to prove he did not recover the full value of damages.
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Join FLexlaw to unlock all legal intelligenceEdmondson was injured in a vehicular accident on July 10, 1976, while employed by Halifax Cable T.V. He settled his third-party lawsuit against the to…
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WENTWORTH, Associate Judge.
This is an appeal from an order of proration entered pursuant to Section 440.-39(3)(a), Florida Statutes (1975). We affirm.
Edmondson, while in the course and scope of his employment with Halifax Cable T.V., was injured in a vehicular accident on July 10, 1976. Edmondson brought suit against the third-party tortfeasor, Swope, and his insurer, Nationwide General Insurance Company, for the injuries sustained in the accident. The suit was subsequently settled for $15,000, which was the limit of applicable insurance coverage. Travelers Insurance Company, Halifax’s compensation carrier, paid Edmondson a total of $42,191.36. During the pendency of the suit against the third-party tortfeasor, Travelers filed a “Notice of Payment of Compensation and Medical Benefits” for workmen’s compensation benefits paid and to be paid to Ed-mondson. § 440.39(3)(a), F.S. (1975).
Ed-mondson’s petition filed in December, 1977, for proration of the settlement proceeds was abated upon Travelers’ objection that proration was premature since a final determination of the workmen’s compensation benefits due was scheduled for hearing in March, 1978. Travelers subsequently filed amended notices of payment and a petition for proration.
The trial court ordered Ed-mondson to pay Travelers $4,365.22 “per the provisions of Florida Statute 440.39(3)(a)” based upon his finding that Edmondson failed to establish that he did not recover from the third-party tortfeasor the full value of his damages because of comparative negligence or the limits of insurance liability and collectibility. The court also denied Edmondson’s petition for attorney’s fees.
Edmondson asserts that the court erred in failing to equitably distribute the amount recovered. We find no reversible error. Section 440.39(3)(a) provides:
The employer or carrier shall recover 50 percent of what it has paid and future benefits to be paid unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee.
Pursuant thereto, it is clear that Travelers was entitled to recover 50% of what it paid unless Edmondson demonstrated that he did not recover the full value of damages sustained by him because of comparative negligence or because of limits of insurance coverage and collectibility. Maryland Casualty Co. v. Whitley, 375 So. 2d 18 (Fla. 1st DCA 1979); National Ben Franklin Insurance Co. v. Hall, 340 So. 2d 1269 (Fla. 4th DCA 1976); Ramar-Dooley Construction Co. v. Norris, 341 So. 2d 546 (Fla. 2d DCA 1977).
Ed-mondson failed to meet his burden of proof since no evidence was presented as to collec-tibility. Maryland Casualty Co. v. Whitley, supra. Edmondson’s argument that the trial court misapprehended the law since the reimbursement ordered does not represent 50% of what Travelers has paid is unavailing. Edmondson cannot complain of this error because he is not adversely affected, and Travelers has not cross appealed that issue. E. g., McMullen v. Hoofnagle, 106 Fla. 16, 142 So. 598 (1932); Strong v. Clay, 58 So. 2d 435 (Fla.1952); Golden v. Harrell, 147 So. 2d 350 (Fla. 2d DCA 1962); cert. denied 155 So. 2d 150 (Fla.1963).
Edmondson’s contention that the trial court erred by denying his petition for attorney’s fees is also without merit. See Universal Engineering Corporation v. Cartier, 380 So. 2d 1160 (Fla. 3d DCA 1980). Ed-mondson’s other contentions have been considered and have been determined to be without merit.
Accordingly, the order appealed is AFFIRMED.
ROBERT P. SMITH, Jr. and ERVIN, Associate Judges, concur.
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Citator
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Orange Cnty. v. Sealy, 412 So. 2d 25 (Fla. 5th DCA 1982)…ubjective nature of several factors involved, the trial judge’s award is affirmed. However, neither section 440.-39(3)(a) or section 440.34(1) authorize attor [*27] ney’s fees for work done in equitable distribution proceedings. Edmondson v. Swope, 395 So. 2d 553 (Fla. 5th DCA 1980); State Department of Health and Rehabilitative Services v. Culmer, 402 So. 2d 1273 (Fla. 3d DCA 1981). Therefore the award of attorney’s fees1 is reversed. AFFIRMED in part; REVERSED in part. FRANK D. UPCHURCH, Jr., and SHARP,…
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Nat'l Airlines, Inc. v. Wikle, 451 So. 2d 908 (Fla. 1st DCA 1984)…ry equitable distribution proceedings are beside the point. Compare, Orange County v. Sealy, 412 So. 2d 25 (Fla. 5th DCA 1982); State, Dept. of Health and Rehabilitative Services v. Culmer, 402 So. 2d 1273 (Fla. 3d DCA 1981), and Edmondson v. Swope, 395 So. 2d 553 (Fla. 5th DCA 1981), with Eight v. Capeletti Bros., 384 So. 2d 1302,1303 (Fla. 4th DCA 1980) (a fee conceded). For the reasons discussed below, we decline to extend Parrish further than it requires, certainly not to the circumstances here; and claim…
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Am. States Ins. Co. v. Clark Johnson, 426 So. 2d 1222 (Fla. 4th DCA 1983)…erred in failing to award attorney’s fees. Section 440.39(3)(a), Florida Statutes (1979), does not authorize such an award. See State, Department of Health & Rehabilitative Services v. Culmer, 402 So. 2d 1273 (Fla. 3d DCA 1981); Edmondson v. Swope, 395 So. 2d 553 (Fla. 5th DCA 1980); Universal Engineering Corp. v. Carter, 380 So. 2d 1160 (Fla. 3d DCA 1980). Accordingly, the trial court did not err in not awarding attorney’s fees. Affirmed in part and reversed in part. LETTS, C.J., and DELL and WALDEN, JJ…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nat'l BEN Franklin Ins. Co. v. Grover Hall, 340 So. 2d 1269 (Fla. 4th DCA 1976)
- Ramar-Dooley Constr. Co. v. Norris, 341 So. 2d 546 (Fla. 2d DCA 1977)
- Golden v. Harrell, 147 So. 2d 350 (Fla. 2d DCA 1962)
- McMullen v. Hoofnagle, 106 Fla. 16 (Fla. 1932)
- Md. Cas. Co. v. Whitley, 375 So. 2d 18 (Fla. 1st DCA 1979)
- Universal Eng'g Corp. v. Cartier, 380 So. 2d 1160 (Fla. 3d DCA 1980)
- Greenwald v. Fla. Real Est. Comm'n, 155 So. 2d 150 (Fla. 1963)
- Md. Cas. Co. v. Gruman, 155 So. 2d 150 (Fla. 1963)