Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

An employee in Florida retains his common law right to sue a third party tortfeasor for injuries sustained in an accident even though the employee receives workers' compensation benefits from his employer for those same injuries.  Section 440.39, Fla. Stat., however, entitles the employer to a lien on the proceeds of any such claim. The proper construction of that section was at issue in Anderson Columbia v. Brewer, decided by the First DCA on 10/22/2008.

 

Brewer was injured by a machine during the course of his employment with Anderson Columbia, Inc., and received workers' compensation benefits from them as a result of his injuries.  He subsequently hired an attorney to pursue a liability claim against the manufacturer of the machine, but the attorney allowed the statute of limitations to expire before he filed suit.  Brewer thereafter filed a legal malpractice claim against his attorney, and that suit was ultimately settled.  In the meantime, however, Anderson Columbia and FCCI, its workers' compensation carrier, had filed a notice of lien in the malpractice case, contending that it was entitled to a lien on the proceeds of the malpractice settlement by virtue of §440.39.

 

The First DCA affirmed the trial court's order denying their claim of lien.  The claimant's attorney was not a "third party tortfeasor" within the meaning of the statute, said the court.

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The Third DCA has held that a workers' compensation carrier is entitled to interest on the benefits it has paid for the period of time after the claimant receives the settlement proceeds from his third-party liability claim until the amount of the carrier's lien is determined.  Nevertheless, no interest is payable for the period of time that the settlement proceeds remained in the claimant's attorney's trust account because interest accruing in that account is payable to the Florida Bar Foundation, Inc., not to the claimant.  Interest also should not be paid at the statutory rate set forth in §55.03, Fla. Stat., when the claimant himself did not receive interest at the statutory rate.  Riser v. Hartford Ins. Co.

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Although the benefits provided by the Florida Workers' Compensation Act ordinarily are a Florida employee's "exclusive remedy" against his employer for workplace injuries, the employee retains his right to bring a tort action against any "third party tortfeasor" whose wrongful conduct caused those same injuries.  In order to prevent the employee from recovering twice for the same injuries in such cases, §440.39, Fla. Stat., provides that the employer (or its workers' compensation carrier) may assert a lien against the proceeds of any employee verdict against or settlement with the third party. Determining the amount of the carrier's lien in such cases - particularly in cases where the third-party action is settled before trial - often leads to confusion.

 

Luscomb v. Liberty Mutual Insurance Company, decided by the Third DCA on 10/17/ 2007, provides a good example.  Here's what happened:  Luscomb was seriously injured in an on-the-job accident while working for Raven Transport Company.  Liberty Mutual (Raven's workers' compensation insurance carrier) provided benefits to and on behalf of Luscomb on account of the accident.  In July 2003, Luscomb filed a tort claim against BJ's Wholesale Club and BJCR, Ltd., contending that their negligence was responsible for his injuries.  As it is required to do, Liberty Mutual filed a notice in that case of its workers' compensation lien. 

 

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