ORANGE COUNTY, APPELLANT,
v.
ROOSEVELT SEALY, ET UX, APPELLEES
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Orange County seeks recovery under Florida's workers' compensation third-party recovery statute for an equitable pro rata share of damages its employee recovered from a negligent third party. The court affirmed the trial court's calculation of the employer's pro rata recovery but reversed the award of attorney's fees, holding that the statute does not authorize such fees in equitable distribution proceedings.
The employer is entitled to recover a pro rata share of the compensation benefits paid, calculated by determining the ratio of the employee's actual net recovery to total damages and applying that ratio to compensation paid. However, neither section 440.39(3)(a) nor section 440.34(1) authorize attorney's fees for work done in equitable distribution proceedings.
[1] An employer seeking recovery of workers' compensation benefits paid to an injured employee from a third-party tortfeasor is entitled to an equitable pro rata share of the…
[2] The equitable pro rata share of damages recoverable by an employer from an employee's third-party recovery is calculated by determining the ratio of the employee's actual…
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Join FLexlaw to unlock all legal intelligence“an equitable pro-ration can be done by formula, determining the relationship that the employee's actual net recovery bears to his total damages and applying that ratio to the compensation benefits”
Establishes the court's method for calculating the employer's pro rata share of third-party recovery
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Join FLexlaw to unlock all legal intelligenceAppellee was employed by Orange County as a deputy sheriff when he was injured by Mr. Smith's negligence. Smith's insurer paid $10,000 in policy limit…
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COWART, Judge.
An employer, who paid an injured employee workers’ compensation, seeks recovery, under section 440.39(3)(a), Florida Statutes (1981), of an equitable pro rata share of damages the employee recovered from Mr. Smith, a third party who negligently caused the employee’s injuries.
Appellee was employed by appellant as a deputy sheriff when he was injured. Mr. Smith’s insurer paid appellee personal injury policy limits of $10,000, which included settlement of appellee’s wife’s derivative claim. There is no dispute that appellant, as employer, paid or would pay appellee $9,465.05 in compensation benefits. The total amount of damages sustained by the employee (or the value of his cause of action against Smith) was contested, but there was substantial competent evidence in the form of expert testimony that appellee’s case was worth $50,000, of which sum his wife’s derivative claim for loss of consortium was worth $5,000. After deducting attorney’s fees and costs out of the $10,000 settlement of his and his wife’s claim, appellee received $6,569.62. Of this amount, the trial court found that 50 per cent constituted a reasonable amount for pain and suffering (not covered by workmen’s compensation) and the wife’s derivative claim. Since appellee demonstrated that he did not recover the full value of the damages he sustained under the statute, the employer was only entitled to recover a pro rata share of compensation paid or to be paid. As suggested in National Ben Franklin Insurance Company v. Hall, 340 So. 2d 1269 (Fla. 4th DCA 1976), an equitable pro-ration can be done by formula, determining the relationship that the employee’s actual net recovery bears to his total damages and applying that ratio to the compensation benefits. These figures and findings would produce this calculation:
$6,569.62 x Vz x $9,465.05 = $690.91 $50,000 - 5,000
By using rounded figures the trial judge awarded $540 as follows:
* * * * *
Considering the subjective 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 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, JJ., concur. . Appellee initially asserted in the trial court, in a post-trial memorandum filed in lieu of closing argument, a claim for attorney’s fees under Fla.R.Civ.P. 1.380(c) based on the need to prove certain denied requests for admissions. The award of attorney’s fees cannot be sustained on this basis because appellant’s request for oral argument on motion for rehearing was denied and appellant has never had an opportunity to properly meet and argue this assertion.
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AETNA Ins. Co. v. Norman, 468 So. 2d 226 (Fla. 1985)…e accident. The trial court went on to set the total value of James Norman’s pain and suffering claim at $45,000 and Natalie Norman’s derivative claim at $15,000. Using these figures in the equitable distribution formula from Orange County v. Sealy, 412 So. 2d 25 (Fla. 5th DCA 1982), the trial court determined that Aetna had a present workers’ compensation lien due in the amount of $2,947.47 (eleven percent of the compensation paid to date), plus the right to reduce all future workers’ compensation benefits…
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Sentry Ins. Co. v. Keefe, 427 So. 2d 236 (Fla. 3d DCA 1983)…employed under the new statute, which forbids that result. Lee v. Risk Management, Inc., supra; Risk Management Services, Inc. v. Scott, supra. (Since the operative dates are not stated in the opinion, it is uncertain whether Orange County v. Sealy, 412 So. 2d 25 (Fla. 5th DCA 1982) is contrary to this conclusion.) . Although this opinion eliminates one issue left open by Lee, we caution that still another, perhaps more difficult one, is not before us and therefore is yet undecided. It is whether the court…
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State v. Elbert E. McDONALD, 436 So. 2d 1134 (Fla. 5th DCA 1983)…nklin inapposite. This court, however, has applied the National Ben Franklin formula since the 1977 amendment. State of Florida, Department of Health and Rehabilitative Services v. McConkey, 421 So. 2d 29 (Fla. 5th DCA 1982); Orange County v. Sealy, 412 So. 2d 25 (Fla. 5th DCA 1982). The appellant recognizes our adherence to the National Ben Franklin formula, but suggests that we reconsider our view and construe the statute as have other district courts; however, we decline the invitation because we believe…
Previewing 3 of 9 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)
- State v. Effie Culmer and Cameron Culmer, 402 So. 2d 1273 (Fla. 3d DCA 1981)
- Edmondson v. Avis Mitchell Swope & Nationwide Gen. Ins. Co., 395 So. 2d 553 (Fla. 5th DCA 1980)