LIBERTY MUTUAL INSURANCE COMPANY, APPELLANT,
v.
BATCH AIR UNIVERSAL INC., A FLORIDA CORPORATION, APPELLEE
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A workers' compensation carrier cannot recover from a third-party tortfeasor when it fails to intervene in timely estate litigation or file its own action within two years of the employee's death, even if it notified the tortfeasor of compensation payments.
A workers' compensation carrier must either intervene in pending litigation or institute its own action within two years following an employee's death to recover from a third-party tortfeasor, or it loses its right to do so.
[1] A workers' compensation carrier must intervene in pending estate litigation or file its own independent action against a third-party tortfeasor within two years of the em…
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Join FLexlaw to unlock all legal intelligenceLiberty Mutual paid workers' compensation benefits to the widow of a deceased employee. The deceased employee's estate had timely settled a cause of a…
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PER CURIAM.
The trial court determined that a workers’ compensation carrier could not recover from an alleged third party tortfeasor payment made to a widow of a deceased employee, notwithstanding the fact that it may have notified the third party tortfeasor of compensation payments. It was incumbent on the company in the two years following the employee’s death, to either intervene in any pending litigation pursuant to Section 440.39, Florida Statutes (1953), or to institute an action itself pursuant to Section 440.39(4)(a), Florida Statutes (1983).
The carrier in the instant action did neither, and we affirm because the action it instituted against the alleged third party tortfeasor, some two years after the third party had settled a cause of action that was timely instituted by the deceased employee’s estate, came too late. Continental Insurance Company v. Industrial Fire & Casualty Insurance Company, 427 So. 2d 792 (Fla. 3d DCA 1983); Cook Motor Company v. Vaughn, 189 So. 2d 536 (Fla. 1st DCA 1966).
The carrier could have intervened in the estate proceedings to protect its interest. If it could not have intervened in the estate proceedings, then it was not affected by any settlement, and it could have proceeded with its own independent action in the second year after the decedent’s death. Therefore, finding no error, we affirm the summary judgment under review.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Zurich v. Weeden, 805 So. 2d 945 (Fla. 4th DCA 2001)…igation between the employee and the third-party tortfeasor, section 440.39(4)(a), Florida Statutes (2000), permits the carrier itself to institute an action against the [*948] tortfeasor. See also Liberty Mut. Ins. Co. v. Batch Air Universal, Inc., 559 So. 2d 1189, 1190. (Fla. 3d DCA), review denied, 574 So. 2d 142 (Fla.1990). Here, Zurich failed to institute its own action against Hunter’s Cleaning Service, and only asserted its lien a month after the trial it was aware of had commenced and the case had been…
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Roberto Lopez-Loarca over person & Prop. of Mario Miguel v. Cosme, 76 So. 3d 5 (Fla. 4th DCA 2011)…rtz, 271 So. 2d 108, 114 (Fla.1972). The carrier can either intervene in pending litigation brought by the employee, or it can proceed with its own action in the second year following the accident. Liberty Mut. Ins. Co. v. Batch Air Universal Inc., 559 So. 2d 1189, 1190 (Fla. 3d DCA 1990). Here, the carrier gave the plaintiff notice of its intent to initiate suit under section 440.39(4)(a), and filed the original complaint in the second year following the accident. Section 95.11, Florida ■ Statutes (2000), p…
Authorities Cited
- Cook Motor Co. v. Vaughn, 189 So. 2d 536 (Fla. 1st DCA 1966)
- Cont'l Ins. Co. & Underwriters Adjusting Co. v. Indus. Fire & Cas. Ins. Co. & Joseph Brannen, 427 So. 2d 792 (Fla. 3d DCA 1983)