THE AETNA CASUALTY AND SURETY CO., A FOREIGN CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, APPELLANT,
v.
EDWIN BORTZ, APPELLEE
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Aetna Casualty and Surety Company appealed a trial court decision limiting its subrogation recovery against a third-party tortfeasor to $2,000 instead of the full $3,081.50 in workers' compensation benefits it paid. The court held that even when a workers' compensation carrier files suit against a tortfeasor during the second year after injury, it is only entitled to an equitable pro rata share of recovery, not full subrogation rights.
The workers' compensation carrier is entitled only to an equitable pro rata apportionment of recovery from the third party tortfeasor, not the full amount of compensation paid. Florida Statute § 440.39(4)(a) does not enlarge the carrier's subrogation rights beyond those provided in § 440.39(3)(a), regardless of when the suit against the tortfeasor is filed.
[1] A workmen's compensation carrier's subrogation rights under § 440.39(4)(a), Fla.Stat., are not enlarged beyond the equitable distribution provided by § 440.39(3)(a) when…
[2] The Workmen's Compensation Law is to be liberally construed in favor of the workingman.
Previewing 2 of 2 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“F.S. 440.-39(4) (a) does not intend to enlarge the subrogation rights of the employer and its insurance carrier under F.S. 440.-39(3) (a)”
The trial court's core holding that the later statute does not expand subrogation rights beyond the earlier statute's limitations
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Join FLexlaw to unlock all legal intelligenceAetna paid workers' compensation benefits totaling $3,081.50 to an injured employee. During the second year after the employee's injuries, Aetna filed…
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This appeal arises out of a suit brought by the workmen’s compensation carrier, The Aetna Casualty and Surety Company in its own name against a third party tort-feasor during the second year after injuries were sustained by an employee covered by the carrier, pursuant to § 440.39(4) (a), Fla.Stat., F.S.A. Cf. Ch. 70-148, § 6, Laws of Florida, 1970. During the course of the trial a settlement was reached with the tortfeasor.
The trial court initially awarded appellant-Aetna $3,081.50, the full amount of the compensation paid to the injured employee. The injured employee filed a motion for rehearing, requesting a pro rata apportionment of the judgment and costs, in accordance with § 440.39(3) (a).
The trial court entered the order here appealed, which in pertinent part is as follows :
“ADJUDGED that (a) F.S. 440.-39(4) (a) does not intend to enlarge the subrogation rights of the employer and its insurance carrier under F.S. 440.-39(3) (a) and this Court hereby determines the subrogation rights of the Plaintiff insurer, AETNA CASUALTY & SURETY CO. to be $2,000.00 herein.
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Appellant argues that the trial court erred in determining that the insurance carrier was only entitled to an equitable distribution from the amount recovered from the third party tortfeasor where the original action against the third party tort-feasor was first filed by the carrier during the second year after the accrual of the cause of action under § 440.39(4) (a).
The principle is by now well established that the Workmen’s Compensa*115tion Law, Ch. 440, Fla.Stat., F.S.A. is to be liberally construed in favor of the workingman. Naranja Rock Co. v. Dawal Farms, Fla.1954, 74 So.2d 282, 286. See generally Zurich Insurance Company v. Renton, Fla.App. 1968, 189 So.2d 492, 496.
It is our view that the trial court correctly construed the provisions of subsections (3) and (4) of § 440.39, Fla.Stat., F. S.A. Therefore, the judgment appealed is affirmed.
Affirmed.
(dissenting).
I would reverse upon the clear language of the statute and the prior determination of the Court of Appeal, Second District. See General Guaranty Ins. Co. v. Moore, Fla.App.1962, 143 So.2d 541; Zurich Insurance Co. v. Renton, Fla.App.1966, 189 So.2d 492.
PEARSON, Chief Judge
(dissenting).
I would reverse upon the clear language of the statute and the prior determination of the Court of Appeal, Second District. See General Guaranty Ins. Co. v. Moore, Fla.App.1962, 143 So. 2d 541; Zurich Insurance Co. v. Renton, Fla.App.1966, 189 So. 2d 492.
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The AETNA Cas. & Sur. Co. v. Bortz, 271 So. 2d 108 (Fla. 1972)…rmines the subrogation rights of plaintiff insurer, Aetna Casualty & Surety Co., to be $2,000.00 herein.” The litigants were again directed to bear their own costs. On Aetna’s appeal, a divided District Court affirmed through a decision reported at 246 So. 2d 114 (3rd D.C.A.Fla.1971). The majority simply held that the Workmen’s Compensation law was to be construed in favor of the working man, and that the trial court was correct in its construction of subsections (3) (a) and (4) (a) of Fla.Stat. § 440.39, F.…
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The AETNA Cas. & Sur. Co. v. Bortz, 272 So. 2d 834 (Fla. 3d DCA 1973)…PER CURIAM. Whereas, the judgment of this court was entered on March 2, 1971 (246 So. 2d 114) affirming the judgment of the Circuit Court of Dade County, Florida, in the above styled cause; and Whereas, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed September 20, 1972 (271…
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Mich. Mut. Liab. Co. v. Pickerill, 271 So. 2d 155 (Fla. 2d DCA 1973)…Opinion filed September 20, 1972;1 and General Guaranty Insurance Company v. Moore (Fla.App.1962), 143 So. 2d 541. MANN, C. J., and HOBSON and Mc-NULTY, JJ„ concur. . Quashing, on conflict cert., District Court decision reported at (Fla.App.1971), 246 So. 2d 114.…
Authorities Cited
- Naranja Rock Co., Inc. v. Dawal Farms, Inc., 74 So. 2d 282 (Fla. 1954)
- Zurich Ins. Co. v. Renton, 189 So. 2d 492 (Fla. 2d DCA 1966)
- Gen. Guar. Ins. Co. v. Moore, 143 So. 2d 541 (Fla. 2d DCA 1962)