LIBERTY MUTUAL INSURANCE COMPANY, APPELLANT,
v.
HUGO RODRIGUEZ, APPELLEE
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PER CURIAM.
The insurer appeals from the trial court’s determination of the subrogation lien awarded pursuant to Section 440.39, Florida Statutes (1981).
The law is now settled in this jurisdiction that the trial court is precluded from reducing a compensation carrier’s third party lien beyond the extent that full recovery is limited by uncollectibility or comparative negligence. Sentry Insurance Co. v. Keefe, 421 So. 2d 236 (Fla. 3d DCA 1983); see also United Parcel Services v. Carmadella, 432 So. 2d 702 (Fla. 3d DCA 1983). In the present case, the trial judge’s personal knowledge as to the extent of the comparative negligence, standing alone, is inadequate to provide a sufficient record from which an aggrieved party may seek appellate review. For this reason, in a lien determination, if a formal hearing is not conducted, the parties should, at a minimum, proffer evidence (by consent), of comparative negligence or noncollectibility of the judgment. Because we are unable to discern whether the present award was consistent with the rule enunciated in Sentry Insurance Co. v. Keefe, supra, the order appealed from is reversed and remanded for further proceedings.
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Coon v. The Cont'l Ins. Co., 511 So. 2d 971 (Fla. 1987)…Division of Risk Management v. McDonald, 436 So. 2d 1134 (Fla. 5th DCA 1983); Whitely v. United States Fidelity & Guaranty Co., 454 So. 2d 63 (Fla. 1st DCA 1984), review denied, 462 So. 2d 1108 (Fla.1985); Liberty Mutual Insurance Co. v. Rodriguez, 436 So. 2d 1091 (Fla. 3d DCA 1983); Hewitt, Coleman & Associates v. Grattan, 432 So. 2d 125 (Fla. 2d DCA 1983); Sentry Insurance Co. v. Keefe, 427 So. 2d 236 (Fla. 3d DCA 1983); Risk Management Services, Inc. v. Scott, 414 So. 2d 220 (Fla. 1st DCA 1982); Lee v. Ris…
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City OF Tallahassee v. Aron Chambliss and Lelia Chambliss, 470 So. 2d 43 (Fla. 1st DCA 1985)…Mincey, 459 So. 2d 339 (Fla. 3rd DCA 1984); Aetna Insurance Co. v. Norman, 444 So. 2d 1124 (Fla. 3rd DCA 1984), reversed in part on unrelated issue, Aetna Insurance Co. v. Norman, 468 So. 2d 226 (Fla.1985); Liberty Mutual Insurance Co. v. Rodriguez, 436 So. 2d 1091 (Fla. 3rd DCA 1983). We find further support for our holding in this court’s decision in Whitely v. United States Fidelity and Guaranty Company, 454 So. 2d 63 (Fla. 1st DCA 1984), in which we declined to read into § 440.39(3)(a) an additional except…
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Winn-Dixie Stores, Inc. v. Roca, 480 So. 2d 171 (Fla. 3d DCA 1985)…hat the trial court is precluded from reducing a compensation carrier’s lien arising under section 440.39(3)(a) beyond the extent that 100% recovery is limited by uncollectibility or comparative negligence. Liberty Mutual Insurance Co. v. Rodriguez, 436 So. 2d 1091 (Fla. 3d DCA 1983). See also United Parcel Services v. Carmadella, 432 So. 2d 702 (Fla.3d DCA), review denied, 441 So. 2d 631 (Fla.1983); Sentry Insurance Co. v. Keefe, 427 So. 2d 236 (Fla. 3d DCA 1983). Nevertheless, the employee argues that the t…
Authorities Cited
- Sentry Ins. Co. v. Keefe, 427 So. 2d 236 (Fla. 3d DCA 1983)
- United Parcel Servs. & Liberty Mut. Ins. Co. v. Carmadella, 432 So. 2d 702 (Fla. 3d DCA 1983)