AMERICAN STATES INSURANCE COMPANY, APPELLANT/CROSS APPELLEE,
v.
CLARK JOHNSON, APPELLEE/CROSS APPELLANT
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The court held that the trial court erred in failing to provide for a lien on future benefits, but affirmed the determination of the lien amount.
Appellant insurance company appealed a final judgment regarding the amount of its lien under a statute and the failure to provide for a lien on future…
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PER CURIAM.
Appellant, American States Insurance Company, appeals from a final judgment contending that the trial court erred in determining the amount of its lien pursuant to Section 440.39, Florida Statutes (1979), and in failing to provide for a lien on future benefits to be paid. We affirm as to the first issue, but reverse as to the second.
The only issue warranting discussion is the trial court’s failure to include in its order a provision allowing the carrier to recover a pro rata portion of any future compensation benefits which it may be obligated to pay to the employee. Section 440.-39(3)(a), Florida Statutes (1979), clearly contemplates a lien on future benefits providing: “The employer or carrier shall recover ... what it has paid and future benefits to be paid .... ” (Emphasis supplied.)
Therefore, this case is remanded with instructions to the trial court to allow appellant to deduct from any future benefits to be paid its pro rata share of the employee’s recovery on the tort claim. The appellant shall recommence payment of full benefits, if and when the sum of the amounts recovered and retained pursuant to its lien equals net recovery on the tort claim. Risk Management Services, Inc. v. McCraney, 420 So. 2d 374 (Fla. 1st DCA, 1982).
Appellee Clark Johnson’s cross appeal raises the issue that the trial court 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., concur.
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AETNA Ins. Co. v. Norman, 468 So. 2d 226 (Fla. 1985)…ant’s] net recovery on the tort claim.” 420 So. 2d at 375. This net tort recovery cap on compensation liens has been followed in other cases. Sentry Insurance Co. v. Keefe, 427 So. 2d 236 (Fla. 3d DCA 1983); American States Insurance Co. v. Johnson, 426 So. 2d 1222 (Fla. 4th DCA 1983); Lee v. Risk Management, Inc., 409 So. 2d 1163 (Fla. 3d DCA 1982). While Aetna has only a fifty percent lien on benefits paid and payable, its lien should extend until there is no fund upon which a lien could attach, that is, th…
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Rory A. Bussert v. Holley, 653 So. 2d 1146 (Fla. 4th DCA 1995)….39, Florida Statutes (1993), a point which the lienors, appellant’s employer and the employer’s servicing agent, concede. We agree. See Aetna Insurance Company v. Norman, 468 So. 2d 226, 228 (Fla.1985); American States Insurance Company v. Johnson, 426 So. 2d 1222, 1223 (Fla. 4th DCA 1983). We therefore remand to the trial court with directions to amend the Order of Equitable Distribution to add the following language as requested by lienor: Once Kings Academy, Inc./FEISCO recover the sum of $11,413.83 pu…
Authorities Cited
- State v. Effie Culmer and Cameron Culmer, 402 So. 2d 1273 (Fla. 3d DCA 1981)
- Risk Mgmt. Servs., Inc. v. Nealy McCRANEY and Inez McCraney, 420 So. 2d 374 (Fla. 1st DCA 1982)
- Edmondson v. Avis Mitchell Swope & Nationwide Gen. Ins. Co., 395 So. 2d 553 (Fla. 5th DCA 1980)
- Universal Eng'g Corp. v. Cartier, 380 So. 2d 1160 (Fla. 3d DCA 1980)