JOSE BARBOSA, APPELLANT,
v.
LIBERTY MUTUAL INSURANCE COMPANY, APPELLEE
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Barbosa appeals a summary judgment dismissing his workers' compensation claim against his insurance carrier, Liberty Mutual, alleging the carrier breached its statutory duty to cooperate in investigating a third-party products liability claim against a ladder manufacturer. The court affirms, holding that section 440.39(7) does not impose a duty on a carrier to preserve and produce evidence that was never in its possession.
Section 440.39(7) does not impose a duty on a carrier to preserve and produce evidence which was never in its possession. The duty to cooperate applies only to producing nonprivileged documents and allowing inspection of premises within the carrier's custody or control.
[1] A workers' compensation carrier's statutory duty to cooperate in investigating third-party claims does not extend to preserving or producing evidence that was never in it…
[2] A statute imposing a duty to cooperate in investigating and prosecuting claims against third-party tortfeasors is to be construed within its plain and unambiguous terms.
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Join FLexlaw to unlock all legal intelligence“section 440.39(7), does not impose a duty on a carrier to preserve and produce evidence which was never in its possession”
Establishes the core holding that the statutory duty to cooperate does not extend to evidence the carrier never possessed
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Join FLexlaw to unlock all legal intelligenceBarbosa fell from a ladder during employment. Liberty Mutual was the workers' compensation carrier. Barbosa informed Liberty Mutual of a potential thi…
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PER CURIAM.
Appellant, Jose Barbosa (Barbosa), appeals a summary judgment in favor of appellee, Liberty Mutual Insurance Company (Liberty Mutual). We affirm.
Barbosa, during the course of employment, fell from a ladder. Liberty Mutual was the workers’ compensation carrier for Barbosa’s employer. After receiving workers’ compensation benefits, Barbosa sued Liberty Mutual pursuant to section 440.-39(7), Florida Statutes (1987). Barbosa alleged that Liberty Mutual breached its statutory duty to cooperate in the investigation of a third-party products liability claim against the ladder’s manufacturer. Barbosa informed Liberty Mutual of the potential third-party products liability claim and made several requests for assistance to inspect the ladder. Barbosa did not contact the employer directly. Liberty Mutual, which never possessed the ladder, neither produced nor arranged for its inspection. Ultimately, the employer left Florida and the ladder could not be located.
Section 440.39(7), imposes a duty on the carrier to cooperate with the employee “in investigating and prosecuting claims and potential claims against third-party tortfeasors by producing nonprivileged documents and allowing inspection of premises.... ” While there is liability for the destruction of evidence when the holder of the evidence has a statutory duty to preserve it, Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984), review denied, sub nom. Cedars of Lebanon Hospital Care Center, Inc. v. Bondu, 484 So. 2d 7 (Fla.1986), section 440.39(7), does not impose a-duty on a carrier to preserve and produce evidence which was never in its possession.
We find that section 440.39(7), is “plain and unambiguous and it should be construed within its four corners.” Fidelity & Casualty Co. of N.Y. v. Bedingfield, 60 So. 2d 489, 495 (Fla.1952). Judicial interpretation is not appropriate here. Holly v. Auld, 450 So. 2d 217 (Fla.1984). We decline to expand the carrier’s duty to acquire and preserve evidence that was not in its custody, especially when nothing prevented appellant from making his own inspection. Accordingly, we affirm.
Affirmed.
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Gen. Cinema Beverages OF Miami, Inc. v. Mortimer, 689 So. 2d 276 (Fla. 3d DCA 1995)…hird-party tortfeasors and to impose a duty of cooperation to that end. This must necessarily include a duty to preserve evidence, at least where, as here, there has been a timely request for preservation. Cf Barbosa v. Liberty Mutual Insurance Co., 617 So. 2d 1129 (Fla. 3d DCA 1993) (suggesting existence of legal duty to preserve evidence under Section 440.39, but not on the particular facts there presented). To hold otherwise would frustrate the purpose of the statute. The statutory enumeration of specific d…
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Se. Recycling Corp. & Royal Ins. Co. v. McCLURE, 658 So. 2d 670 (Fla. 1st DCA 1995)…y different from the present case. The language of section 440.39(7) is unambiguous and provides for a duty to cooperate in the investigation and prosecution of potential claims against third-party tort-feasors. Barbosa v. Liberty Mutual Insurance, 617 So. 2d 1129 (Fla. 3d DCA 1993), quoting Fidelity & Casualty Co. of N.Y. v. Bedingfield, 60 So. 2d 489, 495 (Fla.1952). In Suburban Propane v. Estate of Pitcher, 564 So. 2d 1118 (Fla. 1st DCA 1990), this Court held that under the peculiar facts of that case, the…
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Garcia v. Dennis Roofing, Inc., 920 So. 2d 1224 (Fla. 3d DCA 2006)…PER CURIAM. Affirmed. Barbosa v. Liberty Mut. Ins. Co., 617 So. 2d 1129 (Fla. 3d DCA 1993).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Eugene Holly, M.D. v. Albert W. Auld, M.D., 450 So. 2d 217 (Fla. 1984)
- Mayme Bondu v. Ruben Gurvich, M.D., 473 So. 2d 1307 (Fla. 3d DCA 1978)
- Fid. & Cas. Co. of N.Y. v. Bedingfield, 60 So.2d 489 (Fla. 1952)