Florida/Georgia Personal Injury & Workers Compensation

...1984) (condominium actions); § 725.07, Fla. Stat. (1983) (credit discrimination actions); § 742.031, Fla. Stat. (1983) (paternity determinations); § 376.313, Fla. Stat. (Supp. 1984) (pollution damage actions); § 119.12, Fla. Stat. (Supp. 1984) (Public Records Act enforcement); § 440.39(3)(a), Fla....

...Wilken, 675 So.2d 674, 678 (Fla. 4th DCA 1996). Further, as the Fourth District's opinion in Rollins points out, "[w]hen the Florida Legislature wishes to provide for set-offs for future benefits it well knows how to express itself." Pizzarelli, 704 So.2d at 633. For example, section 440.39(3)(a), Florida Statutes (Supp.1996), provides workers' compensation carriers with claims against responsible third-party tort-feasors *299 for "future benefits to be paid" to the injured employee....

the employer acting under the authority of Section 440.39 F.S. 1941, which clearly authorized the bringing

...In particular, ETS *914 argued that the trial court improperly included in its final order of equitable distribution all costs incurred by Jones rather than only taxable costs. The Second District agreed with ETS, concluding that the term "court costs" within the meaning of section 440.39(3)(a), Florida Statutes (1997), means "taxable costs" instead of "all costs." See ETS, 738 So.2d at 959. Accordingly, the Second District reversed and remanded on this issue. See id. at 960. ANALYSIS The question before us in this case is a narrow one: whether under section 440.39(3)(a), the term "court costs" means "taxable costs" or whether that term means "all costs" incurred by the employee in preparing the claim against the third party, subject to the determination that the costs are reasonable. Jones maintains that the Second District erred in restricting costs to only taxable costs. Section 440.39(3)(a), Florida Statutes provides in pertinent part as follows: Upon suit being filed, the employer or the insurance carrier ......

...gle provision of a statute.... A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme." Smith v. United States, 508 U.S. 223, 233, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993). When all of the parts of section 440.39(3)(a) are considered together, the construction that is most consistent with the statutory language is that the term "all court costs" means "all costs," rather than merely taxable costs as the Second District concluded. Although "court costs" is not defined within section 440.39(3)(a), the term is used interchangeably within the same subsection with "costs." In addition, the statute specifically refers to "all court costs expended by the plaintiff" and "costs......

...[5] The 1951 version provided that the employer/carrier's lien would attach to the employer/carrier's pro rata share of compensation benefits paid, based upon equitable distribution of the amount recovered "less their pro rata share of all court costs expended by the plaintiff." § 440.39(3)(a), Fla....

...[6] However, the Legislature returned an equitable distribution formula to the statute in 1983, which, like the present-day version of the statute, provided for allocation to the employer/carrier of its "pro rata share of all court costs expended by the plaintiff." § 440.39(3)(a), Fla....

...to have adopted prior judicial constructions of a law unless a contrary intention is expressed in the new version." 770 So.2d at 1202. Further, the term "taxable costs" does not appear anywhere in the statute, nor has it ever. Our interpretation of section 440.39(3)(a) is also consistent with the Third District's holding in Brandt v....

...3d DCA 1987), disapproved in part by Manfredo, 560 So.2d at 1165, and the Fifth District's holding in Williams Heating & Air Conditioning Co. v. Williams, 551 So.2d 559, 560-61 (Fla. 5th DCA 1989). In Brandt, the Third District addressed the issue of whether, under section 440.39, the employer's share should be determined by using the net amount or the gross amount of recovery. Brandt referred to the costs available to be subtracted as "recovery costs". See 511 So.2d at 1074. Similarly, in Williams Heating, the First District referred to the costs included in the calculations under section 440.39(3)(a), as "costs of recovery." 551 So.2d at 561....

...ond District's interpretation, the actual costs incurred by the claimant could not be utilized in calculating net recovery for equitable distribution purposes. In conclusion, we hold that the term "all court costs" when viewed within the totality of section 440.39(3)(a), is not limited to taxable costs....

...aintiff in the prosecution of the suit including reasonable attorney's fees for plaintiff's attorney, such proration of court costs and attorney's fees to be made by the judge of the trial court upon application therefor and notice to adverse party. § 440.39(3), Fla....

...Kelley, Third Party Actions and Subrogation in Florida Workers' Compensation Practice 8-1 (5th ed.1996). [6] For example in 1977, the Legislature allowed a lien of 100 percent of the benefits paid after attorney's fees and costs were deducted. See § 440.39(3)(a), Fla. Stat. (1977). The 1979 version, section 440.39(3)(a), Florida Statutes (1979), provided that the E/C's lien applied to settlements along with judgments. [7] The Legislature amended the statute in 1989 to remove the language regarding comparative negligence and limits of insurance coverage and collectibility, and instead provided for the lien formula used since that time. See § 440.39(3)(a), Fla....

...f all other liability of such employer * * *", Section 440.11 (Emphasis supplied.); and it expressly preserves to an injured employee a concurrent remedy against a third party tort-feasor, without definition as to who is a "third party tort-feasor." Section 440.39 (1)....

a lawful expense incurred and authorized by Section 440.39, Florida Statutes, 1941. In no event may the

...ivate or public employment." Use of the language "within public or private employment" can only be read as conferring the same statutory rights to both public and private employees. Our conclusion is buttressed by the related statutory provisions of section 440.39(1) which provide that an injured worker may accept an employer's compensation benefits " and at the same time ... pursue his remedy by action at law or otherwise against [a] third-party tortfeasor." § 440.39(1), Fla....

...ry under the same section remains intact. A contrary interpretation facilitates unequal treatment among public and private employees. We hold that Duffell is entitled to pursue his claim against Lewis as expressly set forth in sections 440.11(1) and 440.39(1)....

...Weathers of Weathers & Seaman, Lantana, for respondents. ADKINS, Justice. This cause is before us on a question certified to the Court by the Fourth District Court of Appeal in Kimbrell v. Paige, 422 So.2d 902, 905 (Fla. 4th DCA 1982), as one of great public importance. The question is: Does Section 440.39(4), Florida Statutes (1981), bar a separate suit against a third party tort-feasor by an injured employee when such suit is filed more than one year after the cause of action accrued and the compensation carrier, in the second year following the accident, gave the *1010 thirty day notice of its intention to seek subrogation and filed an appropriate suit against the third party tort-feasor? We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Section 440.39(4-6), Florida Statutes (1981), reads: (4)(a) If the injured employee or his dependents, as the case may be, fail to bring suit against such third-party tort-feasor within 1 year after the cause of action thereof shall have accrued, the...

...The petitioners contend that the language of the statute does not prevent them from filing a separate action against the tortfeasor in spite of the fact that his compensation carrier has filed suit against the tortfeasor and his given him notice in accordance with section 440.39....

...When an employee is injured while in the course of his employment and he later accepts *1011 compensation benefits, the compensation carrier becomes subrogated to the rights of the employee against the tort-feasor to the amount of the benefits paid. § 440.39(2), Fla. Stat. (1981). The statute gives the carrier the right to institute an action against the third-party tortfeasor if the employee does not institute an action during the first year after the accrual of the cause of action. § 440.39(4)(a); Jersey Insurance Co....

...v. Cuttriss, 220 So.2d 15 (Fla. 3d DCA 1969). If the employee does not bring suit within the first year, the insurance carrier can file suit after giving the required thirty-day notice to the employee (or his dependents) and the employee's attorney. § 440.39(4)(a)....

...f policy, thus to hasten the disposition of third party litigation." 189 So.2d at 494 (citing General Insurance Co. v. Moore, 143 So.2d 541 (Fla. 2d DCA 1962). This Court recognized that only one suit against an alleged tortfeasor is contemplated by section 440.39 in the case of Aetna Casualty and Surety Co....

...I concur in the result reached by the majority, but I disagree on two major issues — the claimant's right to bring suit in the second year after the cause of action accrues and the effect of the dismissal of claimant's action on his wife's cause of action for loss of consortium. Section 440.39(4)(b) provides "[i]f the carrier or employer does not bring suit within 2 years following the accrual of the cause of action against the third-party tortfeasor, the right of action shall revert to the employee." (Emphasis supplied.) If...

...To recover for such injuries, Goldstein brought this action against Acme. The question was immediately raised that Acme was a sub-contractor and not a third party against whom an independent action could be maintained under the Workmen's Compensation Act. § 440.39 (1), F.S.A....

...total disability ("PTD") benefits and supplemental benefits relating back to December 19, 1994. [2] In addition to obtaining indemnity and medical benefits from the E/SA, Lombardi also filed a negligence action in the circuit court, as authorized by section 440.39(1), Florida Statutes (1993), [3] against the homeowners of the property where he was injured. In accordance with the statute, the E/SA then became subrogated to Lombardi's rights against the homeowners, and the E/SA filed the appropriate notice of a lien on any proceeds from Lombardi's claim. See § 440.39(2)-(3), Fla....

...ttlement from a third-party tortfeasor that is less than the full value of his or her tort claim. As specifically framed by the First District, the certified question asks this Court: WHEN THE EMPLOYER/CARRIER IS ENTITLED TO A SUBROGATION LIEN UNDER SECTION 440.39, FLORIDA STATUTES (1993), AND THE CLAIMANT'S NET RECOVERY IN A SETTLEMENT WITH THE THIRD-PARTY TORTFEASOR IS LESS THAN 100 PERCENT OF THE CLAIMANT'S TOTAL DAMAGES, SHOULD THE EMPLOYER/CARRIER'S LIEN BE LIMITED TO A PERCENTAGE *1200 OF THE PERCENTAGE OF THE NET RECOVERY? Id....

...e percentage of total damages." Id. To the contrary, the E/SA maintains that it is entitled to receive reimbursement for the full amount of its lien limited only by the amount of Lombardi's net recovery. [5] Both parties rely on the same language in section 440.39(3)(a), Florida Statutes (1999), which under its current version states as follows: [I]f the employee ......

...See J.J. Murphy & Son, Inc. v. Gibbs, 137 So.2d 553, 562 (Fla.1962) ("Work[er's] compensation is entirely a creature of statute and must be governed by what the statutes provide, not by what deciding authorities feel the law should be."). Over the years, section 440.39(3)(a) has undergone a series of changes....

...Michigan Mutual Insurance, 531 So.2d 330 (Fla.1988)] and Manfredo [v. Employer's Casualty Insurance Co., 560 So.2d 1162 (Fla.1990)]." Lombardi, 738 So.2d at 496. At the same time, the First District recognized that both of these cases addressed earlier versions of section 440.39 and that "neither Nikula nor Manfredo address this precise issue." Id....

...the claimant as the amount which must be satisfied before the carrier need recommence full payment of future benefits." Id.; see Bussert v. Holley, 653 So.2d 1146, 1147 (Fla. 4th DCA 1995). Although this Court decided Norman under a prior version of section 440.39, neither the earlier statute nor the present statute specifically addresses the issue of the cap on the lienor's recovery....

..."Furthermore, the legislature is presumed to have adopted prior judicial constructions of a law unless a contrary intention is expressed in the new version." Brannon, 711 So.2d at 100. Accordingly, we find nothing in the 1989 legislative changes to section 440.39 that would, either expressly or by implication, overturn this Court's holding in Norman, 468 So.2d at 228....

...[18] TIMING OF THE LIEN REDUCTION The last issue that we address arises because of the existence of the third-party lien in light of our pronouncement in Grice. The question states as follows: WHEN AN EMPLOYER/CARRIER IS ENTITLED TO REDUCE A CLAIMANT'S COMPENSATION BENEFITS AS A RESULT OF A SUBROGATION LIEN UNDER SECTION 440.39, FLORIDA STATUTES, SHOULD THE EMPLOYER/CARRIER APPLY THE LIEN REDUCTION BEFORE OR AFTER CALCULATING TOTAL BENEFITS AND APPLYING THE 100 PERCENT AVERAGE WEEKLY WAGE CAP AND RESULTANT OFFSET AUTHORIZED BY SECTION 440.20(15), FLORIDA STATUTES, AND Escambia County Sheriff's Dept....

...sidered in the calculations." Lombardi, 738 So.2d at 493 n. 1. The First District explained that social security retirement benefits are not subject to an offset. See id. at 497. These statements have not been questioned on appeal to this Court. [3] Section 440.39(1), Florida Statutes (1993), provides that: If an employee, subject to the provisions of the Workers' Compensation Law, is injured or killed in the course of his employment by the negligence or wrongful act of a third-party tortfeasor,...

...nd future benefits to be paid, unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. § 440.39(3)(a), Fla....

...At the time suit was filed by the employee, she also filed in the suit a notice directed to the Workmen's Compensation insurer, the petitioner herein, advising the petitioner it would file notice of payment of Workmen's Compensation benefits pursuant to section 440.39, F.S.A....

...tion of The Fidelity & Casualty Company of New York, a corporation, that it be added as a party plaintiff herein, the Court having heard argument of counsel and being advised in the premises, finds that in view of the provision of sub-section (3) of Section 440.39, Florida Statutes, as amended, which provides that the employee plaintiff shall have an option as to the designation of party plaintiffs, and further provides that the employer insurance carrier may file in the suit a notice of payment...

...sidered and ordered that said motion be and the same is hereby denied." This petition for certiorari is filed to review the above quoted order. The petitioner has raised two questions in its' brief: "(1) Under Chapter 26546 of the Acts of 1951 (Sec. 440.39 F.S....

...e the payments provided for by law in the case of accident which produces injury. The first Workmen's Compensation Law in Florida was enacted in 1935 and was Chapter 17481 which is now Chapter 440 F.S.A. Among other provisions of the original Act is Section 440.39 F.S.A., which was amended by Chapter 26546, Laws of Florida, 1951....

...s it existed prior to 1951, placed the compensation insurer. It was to remedy or correct these evils and injustices which had become apparent from the actual operation and administration of the Workmen's Compensation Law that the Legislature amended Section 440.39 F.S.A....

...Florida Power Corporation, 144 Fla. 719, 198 So. 486; Hardware Mutual Casualty Company v. Carlton, 151 Fla. 238, 9 So.2d 359; Stansell v. Marlin, 153 Fla. 421, 14 So.2d 892; and Florida Forestry and Park Service v. Strickland, 154 Fla. 472, 18 So.2d 251. The 1951 amendment to Section 440.39 F.S.A....

...e case of Haverty Furniture Co. v. McKesson & Robbins, 154 Fla. 772, 19 So.2d 59, 60, definitely settled this question against the petitioner. The Court said: "This suit was brought under the provisions of the Florida Workmen's Compensation Act. See Section 440.39, Florida Statutes 1941, F.S.A....

...In so far as there is any conflict between the provisions of the cited Section of the statute and Section 45.01, F.S. 1941, F.S.A., relating to the bringing of civil actions at law in the name of `the real party in interest,' the first cited section (440.39), dealing as it does with a particular matter, must control....

...ought, it would have had some kind of control over the prosecution of the suit or any settlement or compromise which may be made. This question was also settled in the case of Haverty Furniture Co. v. McKesson & Robbins, supra, when the Court said: "Section 440.39, F.S....

...yee as well as for the employer, as was done in this case. Obviously Mr. Sharp had an interest in the proceeds of the action if the recovery exceeded the amount of the statutory reimbursement which his employer was entitled to retain, but under said Section 440.39, the employee, Sharp, having given notice of acceptance of compensation under the statute, `all right' of his to recover damages from the defendants in this cause was completely assigned to his employer, McKesson & Robbins, Inc., which corporation was the only necessary and indispensable party plaintiff....

...When off the job, the employee is not subject to Workmen's Compensation. Additionally, even when on the job, injury or death resulting from the negligence of a third party tort-feasor gives the employee or his survivors and representatives full right to initiate a tort action under Fla. Stat. § 440.39, F.S.A....

...As the minor's employer had Workmen's Compensation insurance with petitioner, petitioner began paying compensation and medical benefits. Thereafter, the petitioner filed a notice of Workmen's Compensation carrier's claim of lien pursuant to the provisions of Section 440.39, Florida Statutes (1975)....

...Ohio Casualty then filed a petition for writ of certiorari before this Court. That petition was denied. 273 So.2d 78 (Fla. 1973). Petitioner was also denied review by the United States Supreme Court. 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973). Based upon a subsequent change in the Workmen's Compensation statute, Section 440.39, Florida Statutes (Supp....

...§ 627.736(3), Fla. Stat. (1975). [3] Its main purpose was to prevent injured plaintiffs from receiving double recovery. Cf. Aetna Casualty & Surety Co. v. Bortz, 271 So.2d 108 (Fla. 1972) (this was the purpose behind the Workmen's Compensation Subrogation Law, § 440.39(3), Fla....

...h; that is, whether Faircloth is a *463 subcontractor. If Faircloth falls within this category, recovery would be limited to the Workmen's Compensation Act. However, if Faircloth was not in this category, but was a third party tort-feasor, then F.S. § 440.39, F.S.A., would be applicable. Section 440.39, Florida Statutes 1969, F.S.A., provides in part that an employee injured in an industrial accident by the negligence or wrongful act of a third party may accept compensation and still pursue his remedy by action at law against the third party....

...njuries caused by the negligence of Air Control Products, Inc. The complaint further alleged that after employment, the attorney delayed instituting action for a period longer than one year, and thereafter the action was subject to the provisions of § 440.39(4) (a), Fla....

...Thus the insurer's rights of reimbursement shall be based upon equitable distribution in accordance with paragraph (b). The equitable distribution provisions of § 627.736(3)(b), Florida Statutes, F.S.A., are taken almost verbatim from the equitable distribution provisions of § 440.39(3)(a), Florida Statutes, F.S.A., the Workmen's Compensation Statute....

...Petitioner contends the vicarious liability of an owner of a dangerous instrumentality to an employee injured by the negligent operation of such instrumentality which is leased to his employer is not immunized by the Workmen's Compensation Act because F.S. Section 440.39, F.S.A....

...He contends the fact there was a lessee-lessor relationship between his employer and Ryder does not operate to immunize the latter. He argues that because he receives Workmen's Compensation benefits owing to the fact he and his employer had accepted the Workmen's Compensation Act is likewise immaterial in view of Section 440.39....

...he motorcycle, had no right in law to any recovery from its lessor, Ryder, the owner of the motorcycle, in order to recoup workmen's compensation benefits it had paid petitioner, neither petitioner nor his employer had any action against Ryder under Section 440.39 or otherwise....

...Knight, Smith & Underwood, Miami, for appellant. DREW, Justice. The appellant, a Workmen's Compensation carrier, questions the amount allocated to it from proceeds of a partial recovery by an employee of its insured against a third party tort feasor. The award was made pursuant to Section 440.39(3), Florida Statutes 1951, F.S.A., which in part provides: "* * * Upon suit being filed the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the emp...

...eriously injured in an automobile accident on August 15, 1951. More than one year later, on October 8, 1952, he brought suit against L.F. Popell, et al., alleging that injury was negligently caused by them. In that action, the appellant, pursuant to Section 440.39(3), supra, filed notice of payment to Radin of compensation benefits, reciting it had paid $4,331.63 and expected to pay further the amount of $21,770 for compensation payments plus $2,000 for medical expenses....

...Radin had no assurance of recovery of the deferred balance. His attorneys were entitled to 40% of the $25,000 plus 25% of the installment payments. A hearing was had to determine the amount to be allotted from the recovery to the appellant under the provisions of Section 440.39(3), supra....

...of the insurance company which received premiums for the exposure of the risk. The sole question is whether under the circumstances set out the Court abused its discretion in determining the amount to be allocated to appellant. The quoted portion of Section 440.39(3) was the result of amendment made in 1951 to the Workmen's Compensation Act....

...range of difficulties attending the litigation itself and the uncertainty of recovery therefrom after final judgment. *396 We think any effort to establish a precise formula to encompass all variables that may be present in situations arising under Section 440.39(3), supra, would be a simple case of judicial legislation....

...person entitled to compensation to recover damages against such third person. “ (3) Such employer on account of such assignment may either institute proceedings for the recovery of such damages or after instituting such proceedings provided ...” 440.39 (1), (2), (3), F.S.A....

...On trial at the close of the plaintiff’s case the defendant made a motion for directed verdict upon the following grounds: “ . . . (a) That M. F. Fontaine had been guilty of a contributory negligence; (b) that M. F. Fontaine had not made an election within thirty days after the date of his injuries as provided by Section 440.39 (1) F.S.A.; (c) that the cause of action abated on the death of M....

...insurance carrier of the “Cab Company” has recognized liability by payment of compensation; that this suit was brought for the use and benefit of the insurance carriers and Virginia Fontaine and that she testified as witness: *544 In respect to 440.39 (1) F.S.A....

...Contrary to benefits to the employer, a third party tortfeasor does not receive any benefit from the act. It subjects him to liability to the employer and to the employee. It specifically: 1. Permits the employee to sue a third party tortfeasor. F.S. 1967, § 440.39(1) F.S.A. 2. The employer is subrogated to the rights of the employee as against a third party to the extent of the compensation paid or to be paid. F.S. 1967, § 440.39(2) F.S.A. 3. If the employee recovers, the employer has a lien on the proceeds and can recover by way of equitable distribution all or a portion of the benefits conferred by the Act on the employee. F.S. 1967, § 440.39 (3) F.S.A. 4. If the employee does not within one year sue the third party tortfeasor, then the employer may sue and get back all of the benefits the employer has paid the employee. F.S. 1967, § 440.39(4) F.S.A....

...Miller, Hodges & Kagan and H. Jack Miller, Miami, for appellee. Before HUBBART, C.J., and SCHWARTZ and JORGENSON, JJ. SCHWARTZ, Judge. The plaintiff Willie Lee appeals from an order which determined the amount of a workers' compensation lien under Section 440.39(3)(a), Fla....

...Addressing the appellant's primary contentions, we first find no error in the *1165 failure to allocate the attorneys' fees and costs of the third party action between the plaintiff and the carrier. In sharp and significant contrast to previous versions of Sec. 440.39(3)(a), which specifically so stated, [3] there is nothing in the present statute which provides for such an apportionment....

...The burden of proof will be upon the employee. Such proration shall be made by the judge of the trial court upon application therefor and notice to the adverse party.... [emphasis supplied] The emphasized portion is an addition to and amendment of the previous statute, Sec. 440.39(3)(a) (1975), which stated in this respect: The employer or carrier shall recover 50 percent of what it has paid and future benefits to be paid unless the employee or dependent can demonstrate to the court that he did not recover the full valu...

...Should Risk Management Services, Inc., be required by the Workers' Compensation Act to pay future benefits to the extent that their lien becomes equal to the net proceeds of the Plaintiff, there is to be no further reduction or offset. [3] See Sec. 440.39(3), Fla. Stat. (1953) (lien subject to carrier's pro rata share of plaintiff's "court costs ... including attorney's fees"); Sec. 440.39(3)(a), Fla....

...The net amount received by appellee, after payment of his attorney's fees and other costs, was $26,481, *1270 which equalled 58.8% of the settlement. The trial court used the following formula to determine the amount of equitable distribution: 58.8% X 1/2 X 45/200 X $28,600 = $1,891.89 The controlling statute is Section 440.39(3)(a), Florida Statutes (1975), the relevant portion of which provides: "......

...this case. The only issue is whether the trial court applied the correct factors to determine the amount of equitable distribution. The formula used by the trial court in this case was incorrect in one respect. As previously stated the provision of § 440.39(3)(a), allowing the employer or carrier to recover 50% of what it has paid or will pay, is not applicable to the facts of this case....

...The effect of this error was to reduce the base amount of compensation subject to proration from $28,600 (the amount the carrier actually paid or will pay) to $14,300 (50% of the amount the carrier actually paid or will pay). When an employee, in accordance with § 440.39(3)(a), establishes that his recovery is for less than the full value of his damages, the 50% of benefits factors is inapplicable....

...Milian's complaint contained two counts against HES, one alleging that HES breached a contractual duty to maintain the evidence and a second alleging breach of a statutory duty. The complaint averred that the contractual duty arose from HES's agreement to maintain the ladder, while the statutory duty arose from section 440.39(7), Florida Statutes (1995), which imposes a duty on an employer to cooperate with an employee in the prosecution of claims and potential claims against third-party tortfeasors. See General Cinema Beverages of Miami, Inc. v. Mortimer, 689 So.2d 276 (Fla. 3d DCA 1995) (holding section 440.39(7) imposes duty to preserve evidence)....

...Therefore, count II also alleges a cause of action in fraud as to any oral representation that the accident would not be covered by worker's compensation. COUNTS III AND IV These counts appear to be seeking equitable distribution of the amounts paid by the carrier to Greer, under section 440.39(3)(a), Florida Statutes (1983)....

...*351 The district court of appeal held that because the carrier's rights came into being only after paying compensation, at which time settlement had already occurred, then there was no claim to which the carrier could be substituted. The Shelby Mutual court observed that the provisions found in section 440.39, Florida Statutes, clearly indicate an intent to allow an employer or its carrier subrogation rights to any recovery from a third party to the extent of the benefits paid....

...The employee filed suit against the employer for spoliation of evidence. He alleged that he asked the employer to preserve the truck and tires for use as evidence in a suit he intended to bring against Goodyear for products liability for a defective tire. He asserted that subsection 440.39(7), Florida Statutes (1989), imposes a statutory duty on the employer to cooperate with an employee in investigating and prosecuting claims against a third-party tortfeasor....

...Camp Dresser & McKee, Inc., 542 So.2d 441, 442 (Fla. 5th DCA 1989). [3] In the unusual circumstances of the present case, the legal issue raised by the employer clearly appears on the face of the employee's complaint. That is so because the employee has brought suit against the employer based on section 440.39, Florida Statutes....

...in the course of his employment by the negligence or wrongful act of a third-party tortfeasor, such injured employee... may accept compensation benefits under the provisions of this law, and at the same time such injured employee... may pursue his remedy by action at law or otherwise against such third-party tortfeasor. § 440.39(1), Fla.Stat. (1989) (emphasis added). See generally Holmes County School Board v. Duffell, 651 So.2d 1176, 1178 (Fla. 1995). The employee's reliance on section 440.39 sufficiently establishes that his injury was covered by workers' compensation. That being so, the employer normally would be entitled to workers' compensation immunity— unless the employee has properly alleged a claim against the employer arising under section 440.39. The employer's motion to dismiss asserts that as a matter of law, the employee's amended complaint does not allege a cognizable cause of action under section 440.39....

...the amended complaint. Consequently it was proper for the employer to raise the issue by motion to dismiss. III. Apart from the procedural question of the propriety of a motion to dismiss, the legal issue presented in the trial court was whether subsection 440.39(7)'s duty of cooperation created a separate basis of liability for an employer who would otherwise enjoy workers' compensation immunity. [4] Subsection 440.39(7) provides: (7) The employee, employer, and carrier have a duty to cooperate with each other in investigating and prosecuting claims *279 and potential claims against third-party tortfeasors by producing nonprivileged documents and al...

...a matter of law there can be no claim against it for spoliation of evidence. The employer urges that it is accordingly entitled to workers' compensation immunity. The employer's reading of the statute, while permissible, is too narrow. The point of section 440.39 is to preserve causes of action against third-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 duties—production of documents and access to premises—must be read as a nonexclusive list. Cf. Southeast Recycling Corp. v. McClure, 658 So.2d 670 (Fla. 1st DCA 1995) (construing section 440.39 to require production of machinery for testing despite the fact that production of machinery is not an enumerated duty)....

...Universal Dry Wall, Inc., 358 So.2d 1170, 1170-71 (Fla. 3d DCA 1978) (after noting lack of allegations in complaint regarding plaintiff's employment status, court held workers' compensation immunity defense could not be raised by motion to dismiss). [4] Section 440.39 allows the employee one year within which to bring a lawsuit against a third-party tortfeasor. Id. § 440.39(4)(a), Fla.Stat....

...If the employee does not do so, the employer or its workers' compensation insurer is allowed one year within which to file such a third-party lawsuit. Id. If no lawsuit is filed by the employer or his insurer, then the right to sue reverts to the employee. Id. § 440.39(4)(b). Regardless of who files the suit, the employee and employer (or insurer) share any recovery pro rata in accordance with a statutory formula. Id. § 440.39(3)-(4)....

...The civil action was settled for $20,000, which was paid to Petitioner by or on the account of the superintendent and Gregg, Gibson & Gregg, Inc., and its insurance carrier. No contention is made here by employer or its carrier that it will be entitled by virtue of F.S. Section 440.39, F.S.A., to any subrogation from the employee's recovery of the $20,000 because of compensation benefits that may be awarded pursuant to the final result herein....

...d Petitioner from benefiting from two inconsistent remedies. The Industrial Relations Commission unanimously agreed that the Judge erred in holding the claim barred by the election of remedies doctrine. The Commission said the 1951 amendment to F.S. Section 440.39, F.S.A., abolished the election of remedies doctrine making it possible for injured employees to "claim workmen's compensation benefits and at the same time institute suit against a third party tort-feasor." Fidelity and Casualty Co....

...iting his employer." The dissenting Commissioner held the injury compensable saying "it is elementary that the discharge of an employee is an essential part of the employment." We agree with the Industrial Relations Commission's conclusion that F.S. Section 440.39(1), F.S.A., permits lawsuits against third party tort-feasors as well as *195 workmen's compensation claims for injuries arising out of the same accident....

...Tipping the statutory balance to allow a health care provider to pursue a larger fee requires a clearer legislative expression than is evident in section 440.13(3). Allowing the suit in this case would give a medical provider preference over an employer/carrier in the proceeds of a recovery from a third party tort-feasor. Section 440.39, Florida Statutes (1993), contains a detailed formulation of the employer/carrier's subrogation rights....

...Co., 560 So.2d 1162 (Fla. 1990). Under that section, the amount of the lien is reduced by costs of collection and the employee's failure to recover full value of damages. CNS's suit here seeks the right of full recovery against settlement proceeds, without any section 440.39(3)(a) adjustments....

...So favoring the interests of the health care provider over those of the worker or employer/carrier is the type of value judgment proper for the legislature, but not for a court. *673 Had the legislature intended for health care providers to pursue claims against settlement proceeds, it could have expressly so stated in section 440.39....

...at the requirement of equitable distribution is applicable to both paragraphs (a) and (b) and set forth guide lines to be followed. We too find that there is a remarkable similarity between F.S. 627.736(3)(b), F.S.A., of the "no-fault" statute and F.S. 440.39(3)(a), F.S.A., of the Workmen's Compensation Statute. In that regard the Court in the Reyes case stated: "The equitable distribution provisions of § 627.736(3)(b), Florida Statutes, F.S.A., are taken almost verbatim from the equitable distribution provisions of § 440.39(3)(a), Florida Statutes, F.S.A., the Workmen's Compensation Statute....

...We agree with the weight of authority and conclude that the claimed damages are not recoverable because they are too remote. Third-party negligence may be the proximate cause of the employee's *1035 injury but, at best, it is only a remote cause of an employer's premium increase. Peoples Gas also urges that section 440.39, Florida Statutes, contained in the workers' compensation statute, precludes Southland from asserting a claim against it for any increase in its workers' compensation insurance premiums. Section 440.39 of the Florida Workers' Compensation Law provides for compensation to employees when third persons are liable for injuries to employees....

...st liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents against such thirdparty tortfeasor, to the extent of the amount of compensation benefits paid or to be paid as provided by subsection (3). § 440.39(2), Fla....

...sation and medical benefits paid or to be paid under the provisions of this law, less their pro rata share of all court costs expended by the plaintiff in the prosecution of the suit including reasonable attorney's fees for the plaintiff's attorney. § 440.39(3)(a), Fla....

...Sharp was thirty-seven years of age at the time of his injury, and that he continued to suffer mental and physical pain after the accident until his death two years later from causes not related to the accident. This suit was brought under the provisions of the Florida Workmen’s Compensation Act. ' See Section 440.39, Florida Statutes, 1941....

...In so far as there is any conflict between the provisions of the cited Section of the statute and Section 45.01, F.S. 1941, relating to the bringing of civil actions at *775 law in the name of “the real party in interest,” the first cited Section (440.39), dealing as it does with a particular matter, must control....

...f action itself was, by the statute, completely assigned, and the statutory assignee was entitled to bring action thereon and control the conduct of such action, subject only to those certain conditions set forth in the statute. Thus, paragraph 2 of Section 440.39 reads: “The giving of notice to accept such compensation shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person.” True it is that further on i...

...However, that statute expressly provides that it shall not be deemed to authorize the assignment of “a thing in action not arising out'of contract,” that is, a cause of action arising purely out of a tort. See Knight v. Empire Land Co., 55 Fla. 301 , 45 So. 1025 , 1028. Section 440.39, E.S....

...ee, as well as for the employer, as was done in this case. Obviously Mr. Sharp had an interest in the proceeds of the action if the recovery exceeded the amount of the statutory reimbursement which his employer was entitled to retain, but under said Section 440.39, the employee, Sharp, having given notice of acceptance of compensation under the statute, “all right” of his to recover damages from the defend *777 ants in this cause was completely assigned to his employer, McKesson & Robbin...

...t authorize the commencement of a suit by the personal representative of the injured person in the first instance. But in the case at bar the action was commenced during the lifetime of the injured party by the employer acting under the authority of Section 440.39 F.S: 1941, which clearly authorized the bringing- of this action....

...��right of action’ for personal injuries survived.- . . . We, therefore, must decline to recognize this finely drawn distinction between the survival of actions and the survival of causes of action.” While the right given the employer under said Section 440.39 to sue on the employee’s right of action and to proceed with the action without the appointment of an administrator where, as here, the employee dies pending the action, is recognized as being applicable on the facts of this case, as...

...SHAW, Justice. We review Michigan Mutual Insurance v. Nikula, 509 So.2d 334 (Fla. 4th DCA 1987), to answer a certified question of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The district court held that under paragraph 440.39(3)(a), Florida Statutes (1981), where a comparatively negligent worker settles with a third-party tortfeasor, the employer's workers' compensation carrier is entitled to a lien against the settlement proceeds in an amount based upon the ratio of settlement to full value of damages....

...TERMINED A PERCENT OF COMPARATIVE NEGLIGENCE THAT DOES NOT CORRESPOND TO THE RATIO OF THE AMOUNT OF THE SETTLEMENT TO THE TOTAL VALUE OF THE INJURED WORKER'S DAMAGES — ALSO DETERMINED BY THE COURT — HOW IS THE LIEN REDUCTION CALCULATED PURSUANT TO SECTION 440.39(3)(A) [sic], FLORIDA STATUTES? Id....

...Following his injury, Thorarinsson's workers' compensation benefits were paid by Michigan Mutual. Nikula sued the maker of Thorarinsson's hard hat, and the parties settled prior to trial. Nikula then asked the trial court to determine the amount of the lien under paragraph 440.39(3)(a), Florida Statutes (1981), to be placed on the settlement proceeds in favor of Michigan Mutual....

...nd future benefits to be paid, unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. § 440.39(3)(a), Fla....

...Third, if the settlement amount is above or below the reduced value attributable to the percentage of comparative negligence, one or the other of the parties would receive an undeserved windfall. In summary, we answer the certified question by holding that, under paragraph 440.39(3)(a), where settlements involving comparative negligence are concerned, the lienholder should be reimbursed in the same ratio as the injured worker....

...On October 28, 1955, the plaintiff, in return for the payment of $1,400, executed to the defendant a general release of any and all claims which he had arising out of the accident on May 23, 1955. The present action was instituted on November 12, 1955, by the United States Fidelity and Guaranty Company pursuant to section 440.39, Florida Statutes, F.S.A. This insurance company was the carrier for the Florida Department of Agriculture and as such was subrogated to the rights of plaintiff Dickerson under section 440.39, Florida Statutes, F.S.A. The facts are undisputed and only questions of law are presented for our determination. The contention of the defendant in the lower court, and one of the grounds upon which the trial judge based his decision, was that section 440.39, Florida Statutes, F.S.A., creates a new cause of action in the subrogated workmen's compensation insurance carrier thus constituting a cause of action created by statute and subject to a three year statute of limitation as provided by section 95.11(5) (a). The plaintiff contended in the lower court and similarly contends before this court that section 440.39 does not create a new cause of action but merely subrogates a party who pays workmen's compensation benefits to the rights of the injured employee, and in effect the subrogated party steps into the shoes of the injured employee for the purpose of prosecuting an action against the third party tort-feasor....

...the workmen's compensation law are wholly the creature of the statute and are based upon the cause of action which the claimant had against the defendant city and subject to the limited subrogation rights under the terms and conditions set forth in section 440.39, Florida Statutes, F.S.A., Cushman Baking Co....

...The action remains as one for personal injuries to the claimant and, therefore, *565 subject to the same statute of limitations. Thus we conclude that the claimant's rights, having been barred by section 95.24, the carrier's rights, derived by operation of section 440.39 (4), are likewise barred by section 95.24....

...n respect to the remedies held against the third person. The employer thereby acquires such rights, and such rights only, as were at the time vested in the employee; nothing more, and nothing less." The applicable portions of our own act as found in section 440.39, Florida Statutes, F.S.A., which was in effect in 1955 when the instant injury occurred is as follows: "If the employee * * * shall accept compensation benefits under this law or begin proceedings therefor, the employer or, in the even...

...n insurance carrier to recover its subrogated interest, is not barred by the release executed by the employee although it is conceded that the employee's release would preclude recovery of more than the insurance carrier is entitled to recover under section 440.39....

...District Court of Appeal of Florida, Fifth District. March 31, 1982. *26 G. Yates Rumbley of Pitts, Eubanks & Ross, P.A., Orlando, for appellant. Robert D. Melton, P.A., Orlando, for appellees. COWART, Judge. An employer, who paid an injured employee workers' compensation, seeks recovery, under section 440.39(3)(a), Florida Statutes (1981), of an equitable pro rata share of damages the employee recovered from Mr....

...50,000 - 5,000 By using rounded figures the trial judge awarded $540 as follows: $ 6,000 _______ x $9,000 = 1080 x ½ = $540. 50,000 Considering the subjective nature of several factors involved, the trial judge's award is affirmed. However, neither section 440.39(3)(a) or section 440.34(1) authorize attorney's *27 fees for work done in equitable distribution proceedings....

...The workers' compensation statute specifically includes a provision which both protects against double recovery and operates to ensure that workers' compensation carriers are reimbursed in the instance that a third-party tortfeasor is found liable for the employee's injuries. See § 440.39, Fla. Stat. (2000). Section 440.39 of Florida's workers' compensation statute ensures both that litigants will not be allowed double recovery for their injuries and that workers' compensation coverage will not ultimately be responsible in situations where an employee's injuries are caused by the employer's, or any other third party's, tortious conduct. See § 440.39, Fla....

...ce of payment of benefits which operates as a lien on any subsequent judgment to the extent that the judgment includes damages of the same type as benefits paid under the workers' compensation plan (e.g., medical benefits and wage compensation). See § 440.39(3)(a), Fla....

...the injury. If, however, the employer has engaged in conduct against the injured employee such that the employee is entitled to damages for pain and suffering and other elements of damage not covered under the workers' compensation statutory scheme, section 440.39 allows the workers' compensation coverage to be refunded or credited for amounts previously paid....

...It is so ordered. PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur. NOTES [1] It is important to note, however, that this Court has approved a holding that the collateral source statute does not extinguish a carrier's right under section 440.39 to apply for a lien on the judgment thereby recovering the amount of any benefits paid to an injured employee whose injuries are later adjudicated to be caused by a third-party tortfeasor....

...On appeal, Builder's Square raises several issues, but we find it necessary to address only two: (1) whether an employer is entitled to specific notice requesting preservation of evidence in order to be held liable for spoliation of evidence under section 440.39(7); and (2) whether the damages award for future lost wages is excessive....

...ith the Workers Compensation law. See § 440.11, Fla. Stat. (1997). At the same time, an injured employee is permitted to maintain a claim against third parties whose negligence or intentional conduct may have contributed to or caused an injury. See § 440.39(1), Fla. Stat. (1997). The same statute imposes a duty, however, on an employer to cooperate with an employee in maintaining a claim against a third party. See § 440.39(7), Fla....

...One of the reasons the employer is obligated to cooperate with the injured employee's pursuit of a third party tort action is that the employer is entitled to recoup some of the compensation benefits paid from the employee's third party judgment or settlement. § 440.39(2), Fla....

...Whitehead v. Keene Roofing Co., Fla., 43 So.2d 464. Of course, compensation is secured to the laborer and his dependents regardless of the circumstance that the injury may have been caused by a stranger to the relationship of employer and employee. Sec. 440.39(1), Florida Statutes 1953, and F.S.A. The law provides procedure for an action by the employee, or upon his delay for a certain period, by the employer, against a third person who by his negligence may have caused the injury or death. Sec. 440.39(3, 4), supra....

...ot apply to widows and other dependents. The appellant argues that the restrictions outlined in the statute just quoted, relative *811 to the succession of persons who may institute actions, do not apply in cases like the present one because in Sec. 440.39(1) of Workmen's Compensation Law it is specified that an "employee, his dependents or personal representatives may pursue his remedy by action at law or otherwise against such third party tort-feasor." Appellant contends that this provision en...

...ation Law, they may prosecute a claim against a third-party tort-feasor as plaintiffs in a different manner than that which must be employed by persons who do not have the benefit of the Workmen's Compensation Law. We cannot construe the language of Section 440.39(3), supra, relative to actions at law against third-party tort-feasors by the employee or his dependents "or those entitled by law to sue in the event [the employee] is deceased" to grant any special concession irrespective of Sec....

...Stanley Bruce Powell of Powell, Powell & Powell, Niceville, for appellees. THOMPSON, Judge. Risk Management Services, Inc., (appellant) appeals from a final judgment contending that the trial court erred in determining the amount of its lien pursuant to § 440.39, Fla....

...2 it had paid out. This order amounted to a finding that appellant was entitled to recover 21.5% of benefits paid. *375 Appellant now urges us to find the trial judge in error, on grounds that the National Ben formula is based on the 1975 version of § 440.39, and is incorrect under the 1979 version of the statute which is applicable in this case....

...controlling. Appellant contends that no change in the law occurred until publication of the opinion in Lee v. Risk Management . This suggestion is incorrect. The law on which National Ben was based was changed on July 1, 1977, the effective date of § 440.39(3)(a), Fla....

...this issue. We do, however, find that the trial judge erred in failing to include in his order a provision allowing the carrier to recover or retain a pro rata portion of any future compensation benefits which it may be obligated to pay to McCraney. Section 440.39(3)(a), Fla....

...$7,500. Appellant, Insurance Company of Texas, is the compensation carrier for Rainey's employer. As such compensation carrier, appellant was brought into the case for the purpose of determining its "pro rata share" of the recovery pursuant to F.S. § 440.39(3), F.S.A., which provides for a lien in favor of the employer or compensation carrier for such share "based upon such equitable distribution of the amount recovered as the court may determine". Appellant contended below and contends here that Section 440.39 is unconstitutional....

...We had occasion to consider this section at length in Arex Indemnity Co. v. Radin, Fla., 72 So.2d 393, 395, and we will not quote the section in full because it is plain that the language actually objected to by appellant here is that which we have quoted above from subsection (3) of Section 440.39. It is first contended that Section 440.39(3) is offensive as denying to appellant the equal protection of the laws. Appellant states that by Section 440.39(3) "the legislature has classified compensation carriers into a group by limiting their right of subrogation." But the validity of this classification is not under attack....

...459, 465, 67 S.Ct. 374, 377, 91 L.Ed. 422. The right to a "pro rata share" based upon "equitable distribution" is available to all compensation carriers under the statute, and there is no denial of equal protection here. The next contention of appellant is that Section 440.39 is unconstitutional because it is vague, indefinite, and an unlawful delegation of legislative authority to the judiciary. As we pointed out in the Arex Indemnity Co. case, supra, 72 So.2d 393, at page 396: "We think any effort to establish a precise formula to encompass all variables that may be present in situations arising under Section 440.39(3), supra, *449 would be a simple case of judicial legislation....

...By this ruling, we do not mean to suggest, however, that a situation might not arise wherein the chancellor would be authorized, by reason of dilatory or other tactics on the part of the employer or compensation carrier, to take such conduct into account in reaching an "equitable settlement" under Section 440.39(3). As for attorney fees, Section 440.39(3) provides that the "pro rata share" to which the employer or carrier shall be entitled, based upon "equitable distribution" shall be "less their pro rata share of all court costs expended by the plaintiff in the prosecution of the su...

...The petitioner was injured 6 January 1950 in the course of his employment with the respondent, Southeastern Utilities Service Company, which was engaged, under contract, in repairing transmission lines of respondent, Florida Power and Light Company. Inasmuch as the mishap occurred before the amendment, in 1951, of Section 440.39, Florida Statutes 1941, and F.S.A., as amended by Chapter 23,822, Laws of Florida, Acts of 1947, we are now concerned only with the effect of the act before it was amended in 1951 as applied to the facts of this case....

...s do not have the right of subrogation against the party causing such injury. In this case without the Statute, the compensation insurer would have no right of subrogation." True, the court there decided a case arising after the amendment of 1951 to Section 440.39, supra, but the principle is the same and would be equally appropriate here....

...in the judge's finding of compensability. The second issue concerns the right of a compensation carrier to set off the recovery obtained by an injured employee from a third party tortfeasor against compensation benefits due the injured employee. See § 440.39(1), Fla. Stat. (1987). The section *657 440.39 provisions limit the amount of the compensation carrier's set-off to its pro rata share of the compensation and medical benefits paid or to be paid, less its pro-rata share of all court costs and reasonable attorney fees expended by the claimant in prosecution of the claim against the third party tortfeasor....

...or after the claim for workers' compensation death benefits was filed. In addition, there is nothing in the record to indicate that the employer or insurance carrier gave written notice of its rights of subrogation to the third party tortfeasor. See § 440.39(3)(b), Fla....

...ment, and affirm the amended order in this regard. However, we find the compensation order should be and is hereby amended to reflect that the carrier is entitled to a set off, to be determined by the trial court in accordance with the provisions of section 440.39(3)(a)....

...here its insured was injured on February 19, 1957, and no action was taken against the city within one year from the date of injury even though the compensation act authorized an insurance carrier to institute suit against a third party tort feasor (§ 440.39(4), Fla....

...James and Natalie Norman brought suit against a third party tortfeasor for their damages caused by the work-related accident. The Normans settled the third party suit for $75,000 and asked the trial court to determine the amount of Aetna's workers' compensation lien under subsection 440.39(3)(a), Florida Statutes (1981)....

...na is reimbursed $31,232.53. The trial court entered a final judgment in conformity with its findings. Aetna appealed. The district court reversed, holding that the Sealy equitable distribution formula used by the trial court is not authorized by subsection 440.39(3)(a). *228 That statute does not permit the trial court to offset or prorate the value of pain and suffering or derivative claims from the net recovery received from a third party tortfeasor. The district court found instead that subsection 440.39(3)(a) entitled Aetna to receive from the net tort recovery of $38,732.53 an amount equal to 100 percent of the benefits paid or to be paid, reduced by Norman's fifty percent comparative negligence....

...e net tort recovery. The district court remanded the case to the trial court with directions. Aetna seeks review of the limit placed on its compensation lien for future compensation benefits. Aetna agrees that the district court correctly applied subsection 440.39(3)(a) in holding Aetna had a present lien on the third party settlement equal to fifty percent of the workers' compensation benefits it had paid Norman because Norman's fifty percent comparative negligence reduced his recovery for the full value of his damages from the third party to the same extent....

...Aetna asserts error in the district court's use of Norman's fifty percent comparative negligence to limit the amount of Aetna's lien on future workers' compensation to fifty percent of Norman's net tort recovery. Aetna argues that this resulted in a double reduction of its compensation lien not authorized by subsection 440.39(3)(a). We agree. The workers' compensation lien set out in subsection 440.39(3)(a) applies to both present and future benefits....

...Accordingly, the decision under review is approved in part, quashed in part, and remanded for proceedings consistent with this opinion. It is so ordered. BOYD, C.J., and OVERTON, ALDERMAN, EHRLICH and SHAW, JJ., concur. ADKINS, J., dissents. NOTES [*] § 440.39(3)(a), Fla....

...[12] The full effect of workers' compensation liens will not be discussed in this opinion, but it seems relevant that Mrs. Shova would apparently be required to repay her benefits to her employer if she recovered against these vice principals for their failure to fulfill the nondelegable duty concerning a safe place to work. Section 440.39, Fla....

...Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ. HENDRY, Judge. Transport Insurance Co., workers' compensation carrier, and Cooper Transportation, Inc., employer, appeal the final judgment of the trial court which determined the amount of the carrier's compensation lien, under section 440.39(3), Florida Statutes (1981)....

...the wife's claim. From that settlement, Mincey's net recovery, after attorneys' fees and costs, was $304,846.56. Cooper Transportation, Inc. and Transport Insurance Co. filed a petition for distribution of the workers' compensation lien pursuant to section 440.39(3)(a), Florida Statutes (1981)....

...e. But see State, Division of Risk Management v. McDonald, 436 So.2d 1134 (Fla. 5th DCA 1983). In Sentry Insurance Co. v. Keefe, 427 So.2d 236 (Fla. 3d DCA 1983), we held that a "trial court is mandatorily precluded by the new `100%' version of Sec. 440.39(3)(a), Fla....

...may [not] reduce a workers' compensation carrier's lien below an amount equal to a pro rata share of what the net third-party recovery is to the worker's full damages, because the third-party's liability is doubtful." Id. at 704 (citation omitted). Section 440.39(3)(a), Florida Statutes (1981), sets forth in relevant part the exact method by which a workers' compensation lien shall be calculated....

...Having determined that Transport Insurance Co. should have received 95 percent of benefits paid and 95 percent of all benefits to be paid, we reject Mincey's contention on cross-appeal that it was error to award any equitable distribution to Transport Insurance Co. § 440.39(2), Fla....

...er and workers' compensation carrier to pay a pro rata share of costs and attorneys' fees in obtaining the recovery. As conceded by Mincey in oral argument, Chapter 440, Florida Statutes (1981), is the controlling statute for this action. Nowhere in section 440.39(3)(a), Florida Statutes (1981), is it required that attorneys' fees and costs be apportioned between the employee and the insurer. Risk Management Services, Inc. v. Scott, supra; Lee v. Risk Management, Inc., supra . Cf. § 440.39(3)(a), Fla....

...' compensation benefits shall be 5 percent of further benefits for which they are obligated. Affirmed as modified, with directions. SCHWARTZ, Chief Judge (specially concurring). This court has made it clear that, under the applicable version of Sec. 440.39(3)(a), Fla....

...For these reasons, I agree with the court's determination of the compensation lien issue. While I do not concur with the court that the cross-appeal has been mooted, I would reject it on the merits on the ground that an employee like Mincey who claims and accepts compensation benefits is precluded by Sec. 440.39(2), Fla....

...is chapter shall be valid, and any employer who makes a deduction for such purpose from the pay of any employee entitled to the benefits of this chapter shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.083. [2] Section 440.39(3)(a), Florida Statutes (1983), provides in relevant part, as follows: Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to t...

...iminating consideration by the jury of the defenses of contributory negligence and assumption of risk; and (2) Because of the employment status of the decedent and the defendant's truck driver, the defendant was not a third party tort-feasor under F.S. 440.39, F.S.A., against whom the plaintiff may prosecute an action for damages....

...denied Fla., 135 So.2d 420); State ex rel. Auchter Company v. Luckie, Fla.App. 1962, 145 So.2d 239 (cert. denied Auchter Co. v. Luckie, Fla., 148 So.2d 278). Under the facts in this case the defendant was a "third party tortfeasor," as that term is used in F.S. 440.39, against whom the plaintiff may bring these actions....

...would pay for the benefit of minor children. The parties agree to the facts so we have for determination only the application of the proper principles of law to the facts. The applicable provisions of the Workmen's Compensation law are set forth in § 440.39, Fla....

...The Department has appealed, and the Culmers have cross-appealed, from the order of equitable distribution, with the Department contending that it should not have been limited to a $500 recovery, and with the Culmers contending that the applicable statute, Section 440.39(3)(a), Florida Statutes (1977), is unconstitutional, that no equitable distribution should have been awarded to the Department and that they (the Culmers) should have been awarded attorney's fees. Upon due consideration, we hold that the provisions of Section 440.39(3)(a), Florida Statutes (1977), mandate a 100% recovery to the Department, and that there is no merit to the Culmers' contentions on cross-appeal. Section 440.39(3)(a), Florida Statutes (1977), states: *1275 * * * Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his...

...[3] Having determined that the Department should have received full recovery, we need not comment on the Culmers' contention on cross-appeal that it was error to award any equitable distribution to the Department. We also find no basis for the Culmers' further contention that Section 440.39(3)(a), Florida Statutes (1977), is unconstitutional as applied to the facts of this case. See The Insurance Company of Texas v. Rainey, 86 So.2d 447 (Fla. 1956). Finally, on the question of the failure to award an attorney's fee to the Culmers, Section 440.39(3)(a), Florida Statutes (1977), does not authorize such an award....

...This cause is before us on petition to review Employer's Casualty Insurance Co. v. Manfredo, 542 So.2d 1365 (Fla. 3d DCA 1989). It concerns the appropriate method of computing a workers' compensation insurer's equitable distribution from a settlement received by an employee from a third-party tortfeasor under section 440.39(3)(a), Florida Statutes (1983). The Third District Court of Appeal applied our recent decision in Nikula v. Michigan Mutual Insurance, 531 So.2d 330 (Fla. 1988), and held that the insurer, which, under section 440.39(3)(a), had a lien on Manfredo's settlement proceeds, is entitled to an equitable distribution amounting to 32.7% of the benefits it has already paid Manfredo and is entitled to reduce future benefit payments to Manfredo by 32.7%....

...He has regularly received workers' compensation benefits, and, at the time of the district court of appeal proceeding, he had received $44,465.05. The workers' compensation insurer filed a notice of lien for payment of compensation and medical benefits pursuant to section 440.39(3)(a), Florida Statutes (1983)....

...Manfredo settled his claim against the third-party tortfeasors for $900,000, and the workers' compensation insurer moved for equitable distribution of its lien on the settlement proceeds. The primary issue for resolution is the mathematical formula which should be utilized in computing equitable distribution under section 440.39(3)(a), Florida Statutes (1983)....

...Third, if the settlement amount is above or below the reduced value attributable to the percentage of comparative negligence, one or the other of the parties would receive an undeserved windfall. 531 So.2d at 331-32 (emphasis added). In construing section 440.39(3)(a), Florida Statutes (1981), we held that "the carrier's lien shall be based upon the ratio of settlement amount to full value of damages." Id....

...66 future benefits to be paid, unless the employee or dependant can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. § 440.39(3)(a), Fla....

...Following the hearing on the petition for equitable distribution, the trial judge found the compromise settlement to include the wife's claim of $12,500 with the balance of $25,000 being due Scott and therefore the subject of equitable distribution. The trial court then applied Section 440.39, Florida Statutes (1975) and the rule and formula established in National Ben Franklin Insurance Company v....

...Scott's wife that was not supported by the evidence. We must disagree with the final calculation of distribution and reverse. The trial court erroneously applied the formula in the Ben Franklin case, which formula had implemented the 1975 statutory Section 440.39(3)(a)....

...No restriction was made in the 1975 statute that the insurer's recovery be limited to the remainder after employee's attorney's fees and costs were deducted. To minimize the inherent complications in applying percentages and factors to arrive at equitable distribution, Section 440.39(3)(a) was amended in 1979 to provide inter alia that: ......

...Appellee further asserts that the statute allows the trial court the discretion to determine in the case of a negotiated settlement, rather than a judgment entered *223 after trial, the pro rata share to which the carrier is entitled. We disagree. Section 440.39(3)(a), Florida Statutes (1979) provides that the insurance carrier's notice of payment shall constitute a lien upon any judgment or settlement recovered to the extent that the court may determine to be their pro rata share for compensation and medical benefits paid or to be paid under the provisions of the law....

...educe the amount to be distributed to the insurer. Thus, the 5% comparative negligence factor being applied to reduce the sum finally due the insurer was proper and in compliance with the applicable amended statute. This procedure and application of Section 440.39(3)(a) was approved in State of Florida, Department of Health and Rehabilitative Services v....

...obtain judgment as requested, it would not seek further recovery in the case. Since appellant will receive the distribution sought, it will be precluded from further demand of reimbursement from Scott. It is clear from the provisions of the amended Section 440.39(3)(a) and the several cited decisions interpreting the statute that equitable distribution must be made in a manner contrary to that which was awarded by the trial judge....

...Accordingly, the summary judgment in favor of the appellee Thomas is reversed. Reversed. HORTON, C.J., and PEARSON, J., concur. NOTES [1] The right of an injured employee to workmen's compensation benefits does not preclude suit by him against a third party tort-feasor, under § 440.39(1), Fla....

...The grounds for defendant’s motion for a directed verdict were: (a) that M. F. Fontaine had been guilty of a contributory negligence; (b) that M. F. Fontaine had not made an election within thirty days after the date of his injuries as provided by Section 440.39 (1) F.S.A.; (c) that the cause of action abated on the death of M....

...The employee received $30,000 in a settlement of his third party action against an allegedly negligent tortfeasor. He then sought a determination of the amount the carrier was to receive from the settlement. Upon hearing, the carrier, relying upon Section 440.39(3)(a), Florida Statutes, contended it was entitled to receive $8,060.34, representing a 50% recovery of the benefits paid and to be paid to the employee....

...The order also required escrowing of sufficient sums from the settlement the employee received in the third party tort action to assure fulfillment of his obligation to the carrier for its reimbursement from his future compensation benefits. Appellants contend the trial court erred in failing to allow a 50% recovery under Section 440.39(3)(a), Florida Statutes, as amended effective October 1, 1974....

...ncluding a reasonable fee for the employee's attorney. Effective October 1, 1974, that equitable distribution provision was deleted. For industrial accidents occurring after that date, equitable distribution to the employer or carrier is governed by Section 440.39(3)(a), Florida Statutes, which provides: "......

...Commenting on the former statute, the Supreme Court of Florida in Arex Indemnity Co. v. Radin, 72 So.2d 393 (Fla. 1954) stated: "We think any effort to establish a precise formula to encompass all variables *548 that may be present in situations arising under Section 440.39(3), supra, would be a simple case of judicial legislation....

...ctive ladder and the settlement received from the manufacturer. Upon our affirmance, the employer's Workers Compensation carrier sued the employee to recover a pro rata share of the damages awarded by the jury. The insurer contended that pursuant to section 440.39(3)(a) it was entitled to recover from the employee: "approximately 59.0% of the sums it has had to pay to and on behalf of [the employee], and to retain approximately 59.0% of future benefits to be paid to and on behalf of [the employee] until the sum recovered and the sums retained equal ......

...This exclusivity provision also governs the liability of a workers' compensation carrier to an employee or to anyone entitled to bring suit in his name. § 440.11(3). The statutory provision as to exclusiveness of remedy however, does not prevent an action against a third-party for an employee's injury. Section 440.39(1) provides that an employee who "is injured ......

...This double recovery is prevented through the statutory scheme of subrogation. If the employee accepts compensation under the law and thereafter files an action against the tortfeasor, the compensation carrier becomes subrogated to a limited extent for the benefits paid or to be paid to the employee. § 440.39(2)....

...Under the provisions of the Workers' Compensation Act, an insurer's statutory subrogation right only applies when an employee receives payments for the disability or medical expenses resulting from an injury in the course of his or her employment. § 440.39(2); see Southland Constr., Inc....

...In order to avail itself of the benefits conferred by statute, the insurer must comply with the rules and conditions stated therein. See Continental Ins. Co., 427 So.2d at 793. One of the most important rules and conditions stated in the Workers' Compensation statute is the duty to cooperate. § 440.39(7)....

...Mortimer, 689 So.2d 276, 279 (Fla. 3d DCA 1995). As such, a claim against an employer for spoliation of evidence is not barred by a claimant's election to seek workers' compensation from his or her employer. See Townsend, 832 So.2d at 167. Moreover, § 440.39(3) expressly provides that: the failure by the employer or carrier to comply with the duty to cooperate imposed by subsection (7) may be taken into account by the trial court in determining the amount of the employer's or carrier's recovery...

...procure recovery). Such sound reasoning would also apply to the instant matter. To permit an insurer to "stand in the shoes" of the third-party tortfeasor, under the circumstances of this case would remove all motivation to cooperate as required by section 440.39(7) and then reward that failure to cooperate....

...When an employee subject to the provisions of the Workers Compensation Law is injured in the course of his employment as a result of the negligence of a third-party, the employee may both accept compensation benefits, and pursue a remedy by an action at law against the third-party tortfeasor. § 440.39(1), Fla. Stat. (2003). If the employee accepts compensation benefits and sues a third party tortfeasor for the same injury, the employer or its insurer becomes subrogated to the rights of the employee against the third party. § 440.39(2), Fla....

...(2003). In the employees suit against the third party, "the employee ... shall sue for the employee individually and for the use and benefit of the employer ... or employer's insurance carrier, in the event compensation benefits are claimed or paid." § 440.39(3)(a), Fla....

...y to cooperate with each other in investigating and prosecuting claims and potential claims against third-party tortfeasors by producing nonprivileged documents and allowing inspection of premises, but only to the extent necessary for such purpose." § 440.39(7), Fla....

...If there had been no destruction of the ladder, and if the claim against the manufacturer had gone to a jury with the same net dollar result, it is clear to me that the insurer would have a right to recover its pro rata share, subject to the provisions of section 440.39(3). That is essentially the principle that the trial court determined in this case, and I see no error in that conclusion. Under section 440.39, the insurer is entitled to recover such amounts realized from both the products liability and the spoliation actions because together they sought to recover the whole of the damages suffered from the negligently made ladder....

...ing evidence critical to its employee's right to recover from a third party tortfeasor, and who has been forced to pay the employee damages for such destruction, be deemed a third party tortfeasor for purposes of a carrier's subrogation rights under § 440.39(3)(a)? FARMER, C.J., POLEN, J., and ANDREWS, ROBERT LANCE, Associate Judge, concur....

...The duty to preserve evidence has been established by statute in Florida in certain limited circumstances. See. e.g., Gayer, 970 So.2d at 426 (holding that a duty to preserve evidence is part of the duty to cooperate found in the Florida Workers' Compensation Act, see Fla. Stat. 440.39(7))....

...e of her employment as a waitress. She was paid $391 in compensation benefits by the appellee, Shelby Mutual Insurance Company, her employer's compensation carrier. On October 3, 1958, Shelby Mutual filed suit against Russell under the provisions of section 440.39(2), Fla....

...We reverse. The issue presented in this case is whether the amount recovered by Volk in his uninsured/underinsured motorist claim must be included in the formula to compute the equitable distribution rate as set forth in the workers' compensation statute, section 440.39(3)(a), Florida Statutes (1987)....

...Under the statute, "a workers' compensation carrier is entitled to a lien on third-party settlement proceeds for both past workers' compensation benefits paid and those to be paid in the future." Payless Oil Co. v. Reynolds, 565 So.2d 737, 737 (Fla. 2nd DCA 1990). The language of section 440.39(3)(a) creates an equitable distribution formula to be applied when an employee has not received the full value of his damages because of comparative negligence *1165 or the limits of insurance coverage and collectibility....

...use damage to others." Brown v. Progressive Mut. Ins. Co., 249 So.2d 429, 430 (Fla. 1971). Thus, it follows that a recovery stemming from uninsured/underinsured motorist coverage should not be included in the formula for equitable distribution under section 440.39(3)(a), Florida Statutes. This is so because such an inclusion could, in fact, create a lien upon the proceeds recovered from any uninsured/underinsured benefits and could unfairly benefit the insurance company. Furthermore, section 440.39(3)(a) does not provide for the inclusion in the equitable distribution formula of the amount of any recovery of uninsured/underinsured motorist benefits. Section 440.39(3)(a) states, in pertinent part: In all claims or actions at law against a third-party tortfeasor, the employee ... shall sue for the employee individually and for the use and benefit of the ... employer's insurance carrier, in the event compensation benefits are claimed or paid .. . the employer or carrier shall recover from the judgment ... (emphasis added) Section 440.39(3)(a) provides that the workers' compensation carrier shall recover from the judgment "[i]n all claims or actions at law against a third-party tortfeasor." Thus, the equitable distribution rate is as follows: judgment against third-party tort-feasor/full value of damages....

...He subsequently filed a negligence/premises liability action against Petitioners, seeking damages for the injuries he sustained in the accident occurring on their premises. The law firm at issue entered an appearance on behalf of Petitioners in the tort action. The firm also filed a Notice of Lien pursuant to section 440.39(3)(a), Florida Statutes, in the tort action on behalf of the employer....

...This is an appeal from an order entered upon a motion for equitable distribution in a personal injury suit. The plaintiff's worker's compensation carrier seeks to recover from its payee, the plaintiff, all benefits paid by the carrier in accordance with section 440.39(3)(a), Florida Statutes (1978)....

...cause is remanded for proceedings consistent with this opinion. REVERSED AND REMANDED. COBB, J., concurs. SHARP, J., dissenting and concurring in result only with opinion. SHARP, Judge, dissenting and concurring in result only. I agree, pursuant to section 440.39(3)(a), Florida Statutes (1978), that an employer or insurance carrier is entitled to receive a pro rata share of a judgment or settlement recovered for reimbursement for compensation and medical benefits paid or to be paid under the Wo...

...ng and loss of consortium from the net recovery to be shared with the compensation carrier on the theory that such elements of damages are not reimbursable under the Worker's Compensation law. [2] The term "equitable distribution," which appeared in section 440.39(3), Florida Statutes (1953), has long been dropped from the statute....

...gainst a third-party tortfeasor. Appellant *1366 Employer's Casualty Insurance third-party tortfeasor. Appellant Employer's Casualty Insurance Company (Insurer) thereafter filed a notice of lien for payment of compensation and medical benefits under § 440.39(3)(a), Fla....

...Appellant Insurer, on the other hand, challenges the order on equitable distribution upon the authority of Nikula v. Michigan Mutual Insurance, 531 So.2d 330 (Fla. 1988), contending that the process utilized by the trial court results from an incorrect interpretation and application of § 440.39(3)(a) (1983)....

...*806 Whittaker & Pyle, Orlando, for appellant. Isham W. Adams; Darrel Carnell, Daytona Beach, for appellee. RAWLS, Judge. Hartford Accident and Indemnity Company appeals from an order determining its subrogation rights under the Workmen's Compensation Act, Section 440.39(3) (a), Florida Statutes, F.S.A....

...y and by applying said percentage in determining Hartford's recovery. *807 With reference to the first point we conclude that the trial court erred in not considering the amount expended by the carrier for medical benefits. Material portions of F.S. Section 440.39(3), F.S.A....

...wide range of difficulties attending the litigation itself and the uncertainty of recovery therefrom after final judgment. "We think any effort to establish a precise formula to encompass all variables that may be present in situations arising under Section 440.39(3), supra, would be a simple case of judicial legislation....

...The trial judge is directed to amend his final order of July 12, 1962, apportioning the medical expenses on the same basis as the compensation; otherwise the order is hereby affirmed. CARROLL, DONALD K., C.J., and WIGGINTON, J., concur. NOTES [1] F.S. § 440.39(3) (a), F.S.A.: "* * * Upon suit being filed [against a third party tort feasor] the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his...

...George Kagan, Miami, for appellants. Haddad & Josephs and Gilbert Haddad, Miami, for appellee. Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ. FERGUSON, Judge. This appeal is from an order denying a workers' compensation carrier's claim, pursuant to Section 440.39(3)(a), Florida Statutes (1981), for a pro rata distribution from a settlement obtained by the injured employee against a third-party tortfeasor....

...apply at all, much less carry the potential for defeating said lien completely, and (2) the practical effect of construing the $350,000 settlement as a gratuity is to frustrate legislative intent evident from successive amendments in recent years to Section 440.39(3)(a), Florida Statutes (1981)....

...409 So.2d at 1165 n. 5. *704 In Sentry Insurance Co. v. Keefe, 427 So.2d 236 (Fla. 3d DCA 1983), we addressed one of the questions left unanswered in Lee v. Risk Management, Inc., and held that a "trial court is mandatorily precluded by the new `100%' version of Sec. 440.39(3)(a), Fla....

...Hal Connor, Winter Haven, for appellee. MOODY, JAMES S., Associate Judge. This is an appeal by a workmen's compensation carrier from a Circuit Court order determining equitable distribution of a settlement made by plaintiff with third party tort feasor pursuant to Section 440.39(3) (a), Florida Statutes of 1959, F.S.A., pertaining to the Florida Workmen's Compensation Law....

...Bennett, the plaintiff widow, brought suit against the third party tort feasor for negligently causing the death of her husband. Settlement was effected for $35,000 cash. The plaintiff widow then filed a petition for apportionment of settlement under Chapter 440.39....

...The carrier filed answer setting forth the amounts of compensation paid or to be paid by the defendant carrier; that the settlement was for its full value and that therefore the carrier should receive full reimbursement less its pro rata costs and attorney's fees. The pertinent part of Chapter 440.39(3) reads as follows: "Upon suit being filed the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall be...

...wide range of difficulties attending the litigation itself and the uncertainty of recovery therefrom after final judgment. "We think any effort to establish a precise formula to encompass all variables that may be present in situations arising under Section 440.39(3), supra, would be a simple case of judicial legislation....

...s this court to issue a writ of common law certiorari, thereby quashing an order of the judge of compensation claims which authorized the taking of certain depositions of the E/C's employees. Petitioner asserts that the order is not authorized under Section 440.39(7), Florida Statutes (1989), and that the ordered depositions exceed the scope of discovery as set forth in Section 440.30, Florida Statutes (1989)....

...State, 436 So.2d 93 (Fla. 1983). It is well established that interlocutory orders dealing with discovery proceedings may be reviewed by certiorari. West Volusia Hosp. Auth. v. Williams, 308 So.2d 634, 636 (Fla. 1st DCA 1975). It is the estate's contention that Section 440.39(7), Florida Statutes (1989), requires the E/C to cooperate by allowing the depositions....

...However, because petitioner has admitted that it is on a fishing expedition to establish employer liability, it certainly cannot be said the depositions involve an investigation or prosecution of a claim or potential claim against a third-party tortfeasor. [1] Thus, the duty to cooperate set forth in section 440.39(7) does not attach in the instant case, [2] and any order requiring it to apply constitutes a departure from the essential requirements of law....

...Consequently, because the judge's order authorized discovery of matters other than AWW, it exceeded the scope of discovery allowed in workers' compensation cases, and must be quashed to that extent. In view of our disposition of this case on the above bases, we do not consider other related issues such as: (1) whether Section 440.39(7) encompasses depositions in addition to the discovery procedures specified in the statute, i.e., production of documents and inspection of premises; and (2) whether the employer's duty of cooperation under the statute extends to the claimant's fellow employees....

...ee's average weekly wage (AWW). I see no basis, however, on which the writ should be issued as to the other information sought. In support of its petition for writ of certiorari, the E/C makes essentially three arguments. First, because the statute (Section 440.39(7), Florida Statutes (1989)), which requires the employee, employer, and carrier to cooperate with each other by producing nonprivileged documents, is silent regarding the taking of depositions, the order directing such depositions for...

...nts of the law in that it allows discovery of matters which are not relevant to the subject matter of the pending action, in violation of rule 1.280(b)(1). Turning to petitioner's first point, I cannot agree that the legislature intended by enacting section 440.39(7) to foreclose the taking of depositions that could lead to the production of nonprivileged documents which might be useful in prosecuting a claim against a third-party tortfeasor. Petitioner *1122 has candidly admitted there is neither any case law in which the statute has been interpreted, nor is there any recorded legislative interpretation of this subsection, which was added to section 440.39 in 1984. See Ch. 84-267, § 9, Laws of Fla. In my judgment, petitioner reads this amended subsection much too narrowly. I consider that section 440.39(7) should be read in pari materia with both Florida Workers' Compensation Rule of Procedure 4.090(a), permitting the depositions of witnesses or parties to "be taken and ......

...of depositions "for the same purposes ... governing the taking and use of such depositions in civil actions at law in the circuit courts of this state." Thus, after considering rule 4.090(a) and section 440.30 in pari materia with the provisions of section 440.39(7), I am of the view that the most logical interpretation of subsection (7) is that depositions may be permitted to assist in the production of nonprivileged documents pursuant to the legislative requirement that the parties have a dut...

...rued in such a way as to limit the production of nonprivileged documents only to issues that remain in controversy in a workers' compensation claim. On the other hand, without some showing by either party of what the legislature intended by enacting section 440.39(7), I am reluctant to say that the legislature did not intend to permit discovery of documents which might be irrelevant to issues which are no longer in dispute in a workers' compensation claim, but which are nonetheless relevant to t...

...is is a fishing expedition in an attempt to find some employer's liability." In response, claimant's attorney said, "That's, it was definitely stated and we're doing that, you're absolutely correct. We will tell you that's what we're doing." [2] See section 440.39(3)(a), in which the legislature acknowledged that an employer may not comply with its duty to cooperate when the "claim or potential claim against a third party is likely to impose liability upon the party whose cooperation is sought." [1] Subsection (b)(1) of the rule states in its entirety: In General....

...using the injury must arise within the course and scope of said managerial duties, and that the conduct not be a violation of law for which the maximum penalty exceeds sixty days imprisonment. See Ch. 88-284, § 1, Laws of Fla. [4] I find nothing in section 440.39(3)(a) that weakens this statement....

...The insurance carrier responsible for worker's compensation payments arising from Coon's injury and death, Continental Insurance Company, filed a claim of lien against a settlement received by the Coon family from several of the alleged third-party tortfeasors. Under this lien, which was authorized under section 440.39(3)(a), Florida Statutes (1981), Continental contended that it was entitled to be reimbursed for the full amount of $71,336.45 it paid to Coon's estate or his survivors....

...As its second point on cross-appeal, the Coon estate argued that the trial court erred in reducing the children's separate settlement, since the children were not named beneficiaries of the worker's compensation award. The narrow issue before us is the construction of a portion of Florida's Worker's Compensation Law, section 440.39(3)(a), Florida Statutes (1981)....

...a recovery against third-party tortfeasors. Thus, under the law as amended in 1983, Continental's single claim on appeal would be without merit. However, this case arose under the law as it existed in 1981, when Coon was injured. In pertinent part, section 440.39(3)(a), Florida Statutes (1981), said: Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, wh...

...We do not find any ambiguity that would necessitate applying rules of construction, especially since we believe these rules would lead to a result contrary to the legislative intent. In the case at bar, we agree with Continental that the proration requirement in section 440.39(3)(a) as it existed in 1981 refers only to those instances where the employee or survivors cannot collect the full amount of damages because of comparative negligence or the limits of insurance coverage and collectibility....

...Nowhere does the bill or the analysis portray the bill as a "clarification," nor does it recite that the courts improperly construed the previous legislative intent on the proration of attorney's fees. Finally, we note that the overwhelming weight of authority supports the interpretation we accord section 440.39(3)(a), Florida Statutes (1981), on the proration of attorney's fees and costs....

...en. The majority holds that Continental's subrogation lien does not apply to that portion of the settlement of the wrongful death action applicable to the children even though the worker's compensation payments were enhanced because of the children. Section 440.39(3)(a), Florida Statutes (1985), which provides for worker's compensation subrogation rights in recoveries from third-party tortfeasors does not deal in such nuances....

...mpensation expenditure; and the employee getting any excess of the damage recovery over compensation. 2A A. Larson, The Law of Workmen's Compensation § 74.16(a), 14-354 (1986). This objective is thwarted by the majority's strained interpretation of section 440.39(3)(a)....

...E.B. Rood, Tampa, for appellee, Mary D. Renton. DYKES, ROGER F., Associate Judge. This is an appeal from a final order of the Circuit Court apportioning recovery against a third party tort-feasor under the provisions of the Workmen's Compensation Law, Section 440.39, Florida Statutes....

...ts, may accept compensation benefits and at the same time pursue his remedy against the third party. If compensation benefits are accepted, then the employer, or insurance carrier as the case may be, is given rights of subrogation. Subsection (3) of section 440.39 provides in part: "(3) (a) * * * Upon suit being filed the employer * * * may file in the suit a notice of payment of compensation and medical benefits * * * and the same shall constitute a lien upon any judgment recovered to the exten...

...arty. * *" (emphasis added) It is then provided that in the event the employee or his dependents shall fail to bring suit within one year after the cause of action shall have accrued, the employer or insurer may institute the suit. Subsection (4) of Section 440.39 provides: "(4) (a) If the injured employee or his dependents, as the case may be, shall fail to bring suit against such third party tort-feasor within one year after the cause of action thereof shall have accrued, the employer if a sel...

...e year. For if such dependents were not able to bring the action after one year, and if the carrier should fail to do so during the second year, there would be a complete bar. Appellee argues, in support of the court below, that, properly construing Section 440.39, the right of action during the second year is concurrent, in both the employee, or his dependents, and the carrier....

...We reject the argument of appellant to the effect that the sole right of action during the second year was in the carrier, and therefore, that any action during the second year would entitle the carrier to an apportionment under subsection (4). It is our view that by the only proper construction of Section 440.39, Florida Statutes, F.S.A., the right of action is concurrent during the second year after accrual of the cause of action....

...In Home Indemnity Company v. McAdams, Fla.App., 139 So.2d 433, action against the third party had been instituted by the employee during the second year and it was held in the Third District Court of Appeal that the Circuit Court had properly applied subsection (3) of Section 440.39 as it existed prior to 1959 in granting to the carrier an equitable proration....

...ecover from the third party any damages for which PIP benefits were payable, to wit: medical and disability benefits, while Greyhound could obtain full reimbursement for the payment of medical and disability benefits out of appellee's recovery under section 440.39, Florida Statutes (1979)....

...Daszykowski, 44 N.Y.2d 894, 379 N.E.2d 161, 407 N.Y.S.2d 633 (1978); Mora v. Ortiz, 75 A.D.2d 563, 427 N.Y.S.2d 415 (1980). The difference between the workers' compensation benefits of $6,209 and the $5,000 subrogation reimbursement represented Greyhound's pro rata share of attorney's fees and costs under section 440.39, which should not be charged against appellee....

...The above-styled matters were consolidated for consideration and disposition because of a common question of law stemming from the interaction of section 768.50, the statute regulating collateral sources of benefits in medical malpractice litigation, and section 440.39, the statute permitting workers' compensation payments to be recovered from a third party tortfeasor....

...For more than forty years Florida has permitted an employee injured in the course of his employment to pursue an independent action against a third-party tortfeasor. See, e.g., Vanlandingham v. Florida Power & Light Co., 154 Fla. 628, 18 So.2d 678 (1944). Within that backdrop, the workers' compensation law, specifically section 440.39, Florida Statutes, expressly encompasses a subrogation right in the provider of workers' compensation benefits....

...oyee against the tortfeasor. The notice constitutes a lien upon any judgment or settlement, and the employer or carrier can recover one hundred percent of the benefits paid or payable to the employee, with certain exceptions not applicable here. See § 440.39, Fla....

...412, 2 So.2d 731 (1941); Warwick v. Hudson Pulp and Paper Co., Inc., 303 So.2d 701 (Fla. 1st DCA 1974). The recovery by the self-insured employer or a carrier of the benefits paid as a result of magnification of a work-connected injury by a third party tortfeasor is contemplated by section 440.39, Florida Statutes. Nothing offered us in either the appellees' briefs or oral arguments detracts from our determination that sections 440.39 and 768.50(4) are functionally integrated....

...Finally, we note that case No. 86-851, American Mutual v. Decker, 518 So.2d 315 (Fla.App. 2d DCA 1987), involves payments by a carrier pursuant to the Minnesota workers' compensation law. The Minnesota Supreme Court, considering the application of a statute similar to section 440.39 and applying it to facts paralleling those at hand, held: The Workmen's Compensation Act makes no distinction between the tort of malpractice and any other tort in allowing subrogation to a compensation carrier who is required by law t...

...[Footnote omitted.] To rule otherwise would permit double recovery by the employee. Williams v. Holm, 288 Minn. 371, 181 N.W.2d 107, 109 (1970). Our analysis has led us to the conclusion that a self-insured employer or carrier, possessing a statutory subrogation right under section 440.39, may file a lien and recover directly from the tort judgment *319 the workers' compensation benefits paid or payable to the employee resulting from the medical negligence....

...The court found that there was a reimbursement of all the compensation benefits paid, noting that the difference between the $6,209 and the $5,000 subrogation reimbursement represented the compensation carrier's pro rata share of attorney's fees and costs under section 440.39, Florida Statutes (1979), which should not be charged against the plaintiff....

...on lien depleted the amount of the third-party settlement. Applying the Mora holding to the facts of the instant case, McGhee would be entitled to recover PIP benefits in the amount of $2,000 plus the amount of attorney's fees and costs permitted by section 440.39(3)(a), Florida Statutes (1985)....

...provide complete insurance coverage to McGhee. Accordingly, we reverse the final judgment. We remand the cause for proceedings wherein the trial court shall establish the compensation carrier's pro rata share of attorney's fees and costs pursuant to section 440.39....

...on against the owner of the mixer by operation of the Workmen's Compensation Law, Chapter 440, F.S.A. Defendant mixer owner contended that it was a subcontractor and not a third party tort-feasor against whom a separate action could be brought under § 440.39(1) F.S.A....

...against future payments by a proportionate share of the costs and attorney's fees that Brandt incurred in effecting the settlement which precipitated the lien. Because we conclude that the trial court did not properly apply the formula set forth in Section 440.39, Florida Statutes (1983), we reverse the judgment below with directions that the amount due Phillips for past benefits paid be recalculated and that the credit Phillips is to receive against future payments to Brandt be reduced by Phillips' pro rata share of Brandt's costs and attorney's fees....

...otalled $62,456.69, his net recovery was only $87,543.31. Brandt then requested the trial court to equitably distribute the amount of Phillips' lien for past and future benefits paid by it and apportion Brandt's attorney's fees and costs pursuant to Section 440.39(3)(a), Florida Statutes (1983)....

...Anything else, Phillips contends, would create a windfall for the employee and double-charge the employer since the employer's recovery is limited to the employee's net recovery, from which costs and attorney's fees have already been deducted. III. Before Section 440.39 was amended in 1983 to expressly direct the proration of *1073 the employee's attorney's fees and costs, an employer was entitled to recover the amount of past worker's compensation benefits it had paid, reduced by the extent that its...

...lue of his damages (due to the employee's comparative negligence, uncollectible judgments, or under-insurance) from the employee's net third party tort recovery, without otherwise sharing in the costs the employee incurred in procuring the recovery. § 440.39(3), Fla....

...ttorney. In determining the employer's ... pro rata share of those costs and attorney's fees, the employer ... shall have deducted from its recovery a percentage amount equal to the percentage of the judgment which is for costs and attorney's fees." § 440.39(3)(a), Fla....

...gligence. Phillips' argument that the uncertainty of future payments makes the inclusion of this amount in apportioning recovery costs to the employer an unwarranted windfall to the employee does not apply to *1074 the statutory formula set forth in Section 440.39, Florida Statutes, because the statute does not use the total amount of worker's compensation benefits received by the employee as a factor in allocating the employer's share of recovery costs....

...gross amount, $150,000, in effect charges Phillips for all of the employee's attorney's fees and costs. However, such a cap on the employer's recovery — in addition to the proration of fees and costs — is specifically required by the statute. See § 440.39(3)(a), Fla....

...Therefore, the employee should not be required to reimburse his employer for worker's compensation payments out of the gross amount of his tort recovery because the employee would eventually end up having to repay the employer out of his own pocket. [4] IV. Because Section 440.39 utilizes the ratio of recovery costs to gross recovery to apportion attorney's fees and costs, the problems of contingent future benefits and possible windfalls to either party never come into play because the ratio does not change wit...

...Because the trial court used the wrong formula to determine Phillips' lien for past benefits and did not apportion the recovery costs against Phillips' future credit, the judgment under review *1075 is reversed and remanded for further proceedings consistent with this opinion. Reversed and remanded. NOTES [1] Section 440.39(3)(a), Florida Statutes (1983), provides: "In all claims or actions at law against a third-party tortfeasor [by the employee,] the employer ......

...Is a workmen's compensation insurance carrier barred on its claim for subrogated benefits paid to an employee by a final judgment in a suit filed by the employee against the third party tort-feasor, where the carrier does not file in said suit the notice of payment of compensation benefits under Florida Statute 440.39(3) (a), F.S.A., and where, at the time of settlement of the employee's claim against the third party tort-feasor, the latter had knowledge that the employee was injured in the course of his employment and that workmen's compensation benefits h...

...yee any balance remaining. In such cases the employee had no control over the suit and was at the mercy of the workmen's compensation carrier, which could also be the liability carrier for the third party tort-feasor. In 1951 the legislature amended Section 440.39, Florida Statutes, F.S.A....

...avail itself of the benefits conferred by statute, it must comply with the rules, regulations, burdens and conditions provided by law. [2] The conditions prerequisite for subrogation in such cases are those set forth in the first paragraph under subsection 440.39(3) — that is, filing in the suit notice of payment of compensation and serving notice of payment of compensation upon all parties to the suit. Subsection 440.39(4) permits the carrier to institute suit if the injured employee fails to bring suit against a third party within one year after the cause of action has accrued, and from any judgment recovered, the carrier may retain full reimbursemen...

...Likewise, the carrier's right to apply the judgment first toward full reimbursement for its compensation expenditures depends upon the same condition, for if the employee instituted the action, the carrier would then be entitled to only the limited subrogation provided in subsection 440.39(3). At this point it should be noted that the three cases relied upon by the appellant — Dickerson, Dade County, and Russell — were cases brought under subsection 440.39(4), whereas in the instant case the third party tort-feasor had already been subjected to suit by the injured employee....

...We find that in order for such a carrier to protect its subrogation rights where it has actual knowledge that suit has been filed by the injured employee, and is later settled and that settlement approved by the court, the carrier's subrogation rights are those set forth in subsection 440.39(3) (a). It has been held that the court order making effective the settlement constituted such a recovery as to be within the purview of subsection 440.39(3) (a), [6] so we conclude that subparagraph (b) is designed to protect the employer or his carrier only in those situations where they are not fully protected under subparagraph (a)....

...Keen, of Shackleford, Farrior, Stalling, Glos & Evans, Tampa, for appellant. Robert C. Lane and Curtiss B. Hamilton, Miami, for appellee Moore. ALLEN, Judge. This appeal is brought by a workmen's compensation carrier from a final order entered on its subrogation claim in an action arising under Section 440.39(4), Florida Statutes, 1957, F.S.A....

...As a result of an accident which occurred on June 10, 1959, the carrier paid compensation benefits to Harry Moore. Moore did not file suit against the allegedly negligent third party tort-feasors within one year from the accident. Accordingly, the carrier, being subrogated to the claim of Moore under F.S. Section 440.39, F.S.A., instituted suit in the name of Moore on June 27, 1960, against the defendants under the provisions of subsection (4) of said statute....

...ier. We hold that in both respects the trial court committed reversible error. The determination of the amount to be awarded a compensation carrier on a subrogation claim is controlled by statute in this state. The applicable statute in this case is Section 440.39(4), Florida Statutes, 1957, F.S.A....

...If this statute had been followed to the letter in the instant case, the carrier would have recovered $7,777.07. Had this suit been instituted within one year of the accident by the employee Moore, however, the amount to be awarded the carrier on its subrogation claim would have been controlled by Section 440.39(3), F.S....

...rehearing on the amount awarded to it on its subrogation claim, it is apparent to this court that the trial judge arrived at the amount recoverable by the carrier by determining its pro rata share based upon an equitable distribution as provided in Section 440.39(3), F.S. 1957, F.S.A., rather than awarding the carrier, as he should have, its total compensation outlay as provided for in Section 440.39(4)....

...ories. This case, as aforesaid, was brought by the carrier after one year had elapsed from the accident which caused injury to Moore, the employee. It is probably unlike the normal situation envisioned by the legislature in passing subsection (4) of § 440.39 in that, while the action was instituted by counsel for the carrier, it was actually tried and settled by the injured employee's own attorney. However, as shown by the exhibits hereinbefore quoted, such a procedure was dictated by the peculiar circumstances of this case and cannot operate to convert the cause to one brought by the employee under Section 440.39(3) in determining the amount to which the carrier is entitled on its subrogation claim....

...It clearly appears from the record that counsel for the carrier permitted Moore's counsel to handle the case as much out of concern for Moore's interest as for the carrier's. The carrier cannot be deemed to have waived or abandoned its right to subrogation benefits under Section 440.39(4) merely because it permitted the employee's attorney to prosecute the action against third parties....

...ier intended to insist on receiving one hundred per cent of its subrogation claim. This view is without merit. The trial judge and counsel for Moore are charged with knowledge of the carrier's right to full recovery for its compensation outlay under Section 440.39(4)....

...Had the trial judge granted said reduced amount of $5,000, it is probable that the matter of subrogation *547 would have been satisfactorily concluded below. None of the aforementioned factors authorized the lower court to adjudicate an equitable distribution to the carrier as provided in Section 440.39(3)....

...We hold, therefore, that the carrier was entitled to the full amount of its subrogation claim, $7,777.07. Turning next to the sum of $400 which was granted Moore's counsel as attorney's fees out of the carrier's award, we note that the procedure for awarding attorney's fees expended in an action brought by a carrier under Section 440.39 (4) is controlled by Section 440.39(3) pertaining to actions brought by the injured employee....

...egligence), and heard the uncontroverted testimony that plaintiff had incurred $10,000 in attorney's fees and $1,111.66 in costs. Based on this evidence, the trial court awarded the employer $700 for its compensation lien. The controlling statute is section 440.39(3)(a), Florida Statutes (1979), which provides, in pertinent part: ......

...[1] Appellee then filed a motion to determine whether Aetna had a lien on the settlement amounts and if so, the amount of said lien. Appellee first challenges Aetna's right to a lien claiming the carrier failed to file a notice of that lien as permitted by § 440.39(3)(a) Fla....

...Historically, a tort-feasor could be subject to double liability if he settled with an injured plaintiff with knowledge that the plaintiff had received worker's compensation benefits. The legislature addressed this problem in 1959 with the addition of subsection (3)(b) to § 440.39, providing: (b) If the employer or insurance carrier has given written notice of his rights of subrogation to the third-party tort-feasor, and, thereafter, settlement or any such claim or action at law is made, either before or after suit i...

...ees expended by the appellee in the prosecution of his claim against the tort-feasor. See, Nikula v. Michigan Mutual Insurance, 531 So.2d 330 (Fla. 1988) and Employer's Casualty Insurance Company v. Manfredo, 542 So.2d 1365 (Fla. 3d DCA 1989). Under section 440.39(3)(a), Florida Statutes (Supp....

...the tort-feasors in the amount of $8,193.64. AFFIRMED in part, REVERSED in part, REMANDED. COWART, J. and ORFINGER, M., Judge, Retired, concur. NOTES [1] The tort-feasors issued a settlement check payable jointly to appellee Williams and Aetna. [2] Section 440.39(3)(a), Florida Statutes (Supp 1986) provides in pertinent part: Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the empl...

...locutory orders relating to Luscomb's attorney's fees and costs. Liberty Mutual asserts that Luscomb's attorneys were required to disgorge $50,662 in fees and costs for application to Liberty Mutual's lien. *380 This case turns on the application of section 440.39(3)(a), Florida Statutes, as in force on the date of Robert Luscomb's injury, [1] to the claims and proceeds in question....

...Liberty Mutual paid workers' compensation medical and disability benefits as provided by law. Luscomb did not file third-party tort claims during the year following his injury, and neither Raven Transport nor Liberty Mutual brought suit during the second year following the injury. Under section 440.39(4), Luscomb's rights of action against third-party tortfeasors then reverted to him, but subject to Liberty Mutual's subrogation and lien rights as provided by section 440.39(2) and (3)....

...That percentage would be applied to Liberty Mutual's total benefits payments of $1,120,408 to produce Liberty Mutual's lien amount. If Liberty Mutual's resulting lien amount is below $81,748, Luscomb will recover the balance of those proceeds personally (free of the lien). II. Section 440.39(3)(a) The lien statute has a straightforward and appropriate objective—the prevention of double recoveries by injured employees who have recovered statutory benefits under the workers' compensation law but also have claims against responsible parties other than the employer....

...ounsel for the plaintiff may discount the value of the claim in order to avoid the risk and delay inherent in any lawsuit. Drafting a single statutory provision to consider that array of permutations is daunting, to say the least. The application of section 440.39(3)(a) is equally daunting....

...ees incurred by the employee or dependent in that suit have been deducted, a percentage of what it has paid and future benefits to be paid equal to the percentage that the employee's net recovery is of the full value of the employee's damages. . . . § 440.39(a), Fla....

...First, the workers' compensation claims had been fully settled, and this meant that the maximum amount of the lien was a liquidated sum. Second, there was no evidence that other non-settling third-party tortfeasors might provide further sources of recovery attributable to the accident. III. Analysis Section 440.39(3)(a) has produced a continuing line of cases interpreting its daunting directives....

...t recovery. The final judgment and orders below are thus incorrect to the extent that they impose any lien over the settlement funds or right of recovery in favor of Liberty Mutual to proceeds of the settlement in excess of the $81,748 net recovery. Section 440.39(3)(a) does not penalize an injured worker's counsel—who, after all, produced a subrogation recovery for the insurer—for successfully prosecuting the worker's claim against a third-party tortfeasor. The second issue is whether Liberty Mutual's lien over the net proceeds must be reduced to a percentage of the benefits paid by Liberty Mutual because of evidence in the trial court that, in the words of section 440.39(3)(a), Luscomb "did not recover the full value of damages sustained." The trial court found that Luscomb "failed to establish any conditions showing comparative negligence at the time of the injury which would occasion a diminution in...

...If the lien is less than that amount, Liberty Mutual will be paid its lien from the proceeds, and the remaining balance will be paid to Luscomb. IV. Conclusion Liberty Mutual's lien on the proceeds of the settlement of Luscomb's third-party claim against BJ's as provided by section 440.39(3)(a) will not exceed the net proceeds otherwise payable to Luscomb....

...Payments by the carrier have exceeded $30,000 and may be more as the medical expenses remain open pursuant to section 440.20(12)(a), Florida Statutes (1981). After DeFourny filed suit against Naples Lumber and the Nixes, the carrier filed a notice of lien pursuant to section 440.39(3)(a), Florida Statutes (1981), upon any recovery DeFourny may ultimately receive in the action. As the case was approaching trial, Naples Lumber settled with DeFourny for $7500. From these settlement proceeds, $750 was awarded to Sandrew and its carrier in satisfaction of the section 440.39 lien. The order distributing the proceeds specifically provided that the $750 should extinguish only the section 440.39 lien as to the $7500 collected from Naples Lumber and that Sandrew and its carrier retained "a lien on any further proceeds that may be recovered in this cause, the amount of which will be determined at that time." During the pendency...

...As potential creditors of Iowa National, both DeFourny and the carrier filed claims with FIGA pursuant to section 631.181, Florida Statutes (1981). FIGA denied the carrier's claim as not being a "covered claim" as defined by section 631.54(3), Florida Statutes (1981). DeFourny subsequently moved to set aside the carrier's section 440.39 lien....

...l claim against the wrongdoer. See Blue Cross & Blue Shield, Inc. v. Ryder Truck Rental, Inc., 472 So.2d 1373 (Fla. 3d DCA 1985), rev'd on other grounds, 498 So.2d 423 (Fla. 1986). With these two definitions in mind, we now examine the provisions of section 440.39. Under certain circumstances, an employer or its carrier is permitted to institute suit against a third party tortfeasor in its own name. See § 440.39(4)(a), Fla....

...Neither the carrier nor the employer, however, brought suit against the third party tortfeasors, and upon DeFourny's filing suit against the third party tortfeasors, Sandrew and its carrier had no right of subrogation. The carrier exercised the only right it had under section 440.39 by filing its notice of payment of compensation and medical benefits. Section 440.39(3)(a) provides that this notice shall constitute a lien upon any judgment or settlement recovered to the extent that the court may determine to be the carrier's pro rata share....

...Furthermore, a statute should be construed so as to ascertain and give effect to the intention of the legislature as expressed in the statute. Deltona Corp. v. Florida Public Service Commission, 220 So.2d 905 (Fla. 1969). Since the clear legislative intent behind the section 440.39(3)(a) lien is to avoid a double recovery, we see no reason why the definition of "covered claim" in section 631.54(3) and the prohibition against subrogation claims contained therein should operate to nullify that intent....

...See Markham v. Blount, 175 So.2d 526 (Fla. 1965). Since we have determined that the definition of "covered claims" in section 631.54(3) applies to claims filed pursuant to the provisions of chapter 631 and not to workmen's compensation liens filed pursuant to section 440.39(3), both statutes can be given effect without destroying the evident intent of either statute. Only after DeFourny has established the Nixes' liability and collected from FIGA must the trial court determine the pro rata share, if any, of DeFourny's award that the carrier is to receive. See § 440.39(3)(a)....

...We, accordingly, hold that although the prohibition against subrogation recoveries contained in section 631.54(3) justified FIGA's denial of the carrier's claim filed directly with FIGA pursuant to section 631.181, the prohibition cannot properly be applied to justify striking the carrier's lien filed pursuant to section 440.39(3)(a)....

...(2004) (for unemployment compensation benefits); § 440.20(13), Fla. Stat. (2004) (for advance payments of compensation); § 440.20(14), Fla. Stat. (2004) (for payment of wages and medical expenses made in lieu of compensation benefits prior to an award of compensation); § 440.39(2), Fla....

...Thompson, of Fowler, White, Gillen, Humkey & Trenam, Tampa, for appellant. L. Grady Burton and John W. Burton, Wauchula, for appellee Grice. SMITH, D.C., Associate Judge. This appeal brings on for review an order apportioning a judgment between an employee's dependent and the employer's insurance carrier as provided in Section 440.39(3) (a) Florida Statutes 1961, F.S.A....

...g the plaintiff's total compensable loss amount to $82,577.69; a judgment of $25,000.00, predicated upon a jury verdict in that amount, has been entered in this cause and the said judgment should be prorated and distributed in the manner provided in Section 440.39(3) (a) F.S.A.; the plaintiff has contracted and must pay her attorneys 33 1/3 per cent of the judgment as their fee for services in this case and after deducting the attorneys' fee, the plaintiff will have a net recovery of $16,666.67;...

..."It is ORDERED AND ADJUDGED that the Security Mutual Casualty Company be apportioned $3,855.08 of the judgment in the above cause, out of which it shall pay plaintiff's attorneys the sum of $1,250.00 as fees for their services in said action." The insurance carrier appeals from such order. Section 440.39, sub-sections (3) (a) and (4) (a), provide: "Compensation for Injuries where third persons are liable * * * * * * "(3) (a) In all claims or actions at law against a third party tort-feasor, the employee, or his dependents, or those ent...

...h plaintiff was entitled to recover were in fact liquidated in the verdict and determined by the jury to be full and complete damages, the appellant is entitled to full recovery of benefits paid; that although this case comes under the provisions of Section 440.39(3) (a), rather than 440.39(4) (a), a consideration of the statute as a whole is necessary to determine its scope and purpose and asserts that the aim of subrogation clauses within compensation statutes are to give the employer or his insurer who has paid the compensation benefits a means of recoupment, citing United States Casualty Co....

...overy of her full and complete damages. In other words, it is appellant's contention that, under the facts of this case, there is no basis for any "equitable distribution of the amount recovered as the Court may determine." In cases instituted under Section 440.39(3) (a), Florida Statutes, F.S.A., where a settlement is made between the plaintiff and a third party tort-feasor, the authority of the Court to make an "equitable distribution of the amount recovered as the Court may determine" is no longer open to question....

...the insurance company which received premiums for the exposure of the risk. "The sole question is whether under the circumstances set out the Court abused its discretion in determining the amount to be allocated to appellant. "The quoted portion of Section 440.39(3) was the result of amendment made in 1951 to the Workmen's Compensation Act....

...wide range of difficulties attending the litigation itself and the uncertainty of recovery therefrom after final judgment. "We think any effort to establish a precise formula to encompass all variables that may be present in situations arising under Section 440.39(3), supra, would be a simple case of judicial legislation....

...rd party, because of the wrongful death of her husband. The insurance carrier and employer had full knowledge of the suit being prosecuted against the third party, but no steps were taken by the insurance carrier or the employer, as provided by F.S. Section 440.39(3), F.S.A....

...0.16, F.S., F.S.A., was not destroyed because the death of her husband was due to the negligence of the third party while the husband was driving a truck in the scope of his employment and because she recovered from such third party as authorized by Section 440.39 (3), F.S., F.S.A....

...Without the statute the insurance carrier would be entitled to no subrogation rights. Fidelity & Cas. Co. of New York v. Bedingfield, Fla., 60 So.2d 489." (Italics supplied) Under the above authorities, it is apparent that the appellant's right arises solely by virtue of the statute, Section 440.39 (3) (a), and its right is subject to such equitable distribution of the amount recovered as the Court may determine....

...Development USA, L.L.C. ("Conquest"), a contractor involved in the project on which he was injured; and Michael Belyea, the owner of Irrigation Masters. Hartford filed a notice of payment of workers' compensation benefits in that action pursuant to section 440.39(3)(a), Florida Statutes (2001), thereby asserting its lien against any proceeds Mr....

...The personal representative specifically agreed to satisfy any existing workers' compensation lien from the settlement proceeds and to indemnify the defendants with respect to any such lien. Hartford contends it has a right to assert a lien pursuant to section 440.39(3)(a), which provides in pertinent part as follows: In all claims or actions at law against a third-party tortfeasor, the employee, or his or her dependents or those entitled by law to sue in the event he or she is deceased, shall sue...

...its paid or to be paid under the provisions of this law, less their pro rata share of all court costs expended by the plaintiff in the prosecution of the suit including reasonable attorney's fees for the plaintiff's attorney. (Emphasis added.) Thus, section 440.39(3)(a) permits a workers' compensation carrier to assert a lien with respect to benefits it has paid on behalf of an injured employee....

...rs' compensation carrier's lien to proceeds of recovery by the personal representative on behalf of the estate). Thus, under the facts of this case, we conclude that Hartford should be given the opportunity to proceed to a hearing as contemplated by section 440.39(3)(b) to assert its lien against those settlement proceeds attributable to the Estate's claims, but not to those proceeds attributable to the survivors' claims....

...on and which was supported by competent and substantial evidence). Following apportionment of the settlement proceeds, Hartford should be permitted to assert its lien, as appropriate, against those proceeds attributable to the Estate as set forth in section 440.39(3)(a)....

...solely upon counsel's affidavit. Because we find error in the award itself, we do not reach the question of the manner used to determine the amount of attorney's fees, but note that appellee has confessed error on that point. Both parties agree that Section 440.39(3)(a), Florida Statutes (1973), does not authorize an award of attorney's fees in an equitable distribution proceeding....

...award a fee. We find the trial court committed error in awarding attorney's fees to claimant's counsel in an equitable distribution proceeding. For the foregoing reasons, we reverse the decision of the trial court awarding attorney's fees. NOTES [1] Section 440.39(3)(a), Florida Statutes (1973) states: Upon suit being filed the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, wh...

...Reduced by plaintiff's comparative negligence of 75% $12,076.25 The defendant Aetna as the Workmen's Compensation carrier is entitled to a lien (notice of which was filed on March 28, 1973), upon the recovery of the plaintiff, in the amount of $3500 plus wage benefits paid, for the sum previously paid him. [3] F.S.A. § 440.39(3)....

...en. Subsequently, the See-Wais' suit against Clarkson and Jensen was settled for $22,000.00. See-Wai then filed a motion for equitable distribution, asking the court to determine the pro rata share to which American States was entitled, according to section 440.39(3)(a), Florida Statutes (1977), [1] which provides in pertinent part: ......

...roperly reduced the carrier's recovery by subtracting the wife's consortium claim from the total, and by reducing that recovery because of the factor of pain and suffering. (2) The National Ben Franklin formula was abrogated by the 1977 amendment to section 440.39(3)(a) and should not be applied in this case....

...paid by the carrier, but disapproved the district court opinion relative to its limitation on the carrier's lien on future benefits. We note that the instant case does not concern unpaid future benefits, [4] nor does it concern the 1983 amendment to section 440.39(3)(a), which makes it clear that the carrier "shall have deducted from its recovery a percentage amount equal to the percentage of the judgment which is for costs and attorney's fees." The recent Aetna opinion does not apply that amendment retroactively, although it appears remedial in nature. See City of Lakeland v. Catinella, 129 So.2d 133 (Fla. 1961). We are bound by Aetna. ISSUE NO. I In regard to this issue, it is apparent from Aetna that the National Ben Franklin formula is not applicable to cases governed by the language of section 440.39(3)(a), Florida Statutes (1977)....

...5th DCA 1982). Since no order has been entered on this separate issue, we decline review at this time. CONCLUSION We recognize, contrary to prior opinions of this court, [5] that the National Ben Franklin formula was abrogated by the 1977 amendment to section 440.39(3)(a)....

...Underwood, Gillis, Karcher & Valle and William Edwards, Miami, for appellant. Joe N. Unger, Miami, Jay Dermer, Miami Beach, for appellees. Before HUBBART, FERGUSON and JORGENSON, JJ. PER CURIAM. This is an appeal from a final judgment which determined the amount of a workers' compensation lien under Section 440.39(3)(a), Florida Statutes (1981)....

...arty tortfeasor based on this work-related accident, as a result of which the claim was settled for $75,000. The plaintiffs then filed a motion below to determine the amount of the defendant Aetna Insurance Company's workers' compensation lien under Section 440.39(3)(a), Florida Statutes (1981)....

...l parties to the suit or their attorneys of record by the employee. Notice of payment of compensation benefits shall be served upon the employee and upon all parties to the suit or their attorneys of record by the employer and compensation carrier." § 440.39(3)(a), Fla....

...f $19,366.26 (50% of the net tort recovery) has been satisfied. We reject the contrary authority of Orange County v. Sealy, supra , upon which the trial court relied, as it announces an equitable distribution formula which is in no way authorized by Section 440.39(3)(a), Florida Statutes (1981)....

...The appellant [the insurance carrier of the employer of the appellee, Harb] subsequent to paying compensation payments and the institution of an action by the appellee, Harb, against the appellees, South Florida Freightways, Inc., E.R. Sidall and Carlton Shaw, pursuant to the provisions of § 440.39(3) (a), Fla....

...ettled for $50,000. The co-worker also received $1,000 directly from Treadwell. As a result of the injuries, appellant had paid Whitley some $27,500 in workmen's compensation benefits. Under the law in effect at the time of this industrial accident, Section 440.39, Florida Statutes (1975), Maryland Casualty Company could recover, from the employee's recovery against the third-party tortfeasor, 50 percent of what Maryland Casualty had paid to the injured employee. Maryland Casualty, in the instant action, sought reimbursement for half the amount it had paid Whitley. Section 440.39(3)(a), however, provides that the carrier will not recover half of the benefits paid if: [T]he employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility....

Mitchells, who had become assignees, under Section 440.39, Florida Statutes 1941, and F.S.A., of the

...The jury rendered a verdict in the amount of $160,000 for petitioner and nothing for the estate of the husband who died during litigation. Petitioner settled for $150,000 to avoid an appeal. Old Republic moved for its statutory share pursuant to a notice of lien filed under section 440.39(3)(a), Florida Statutes (1975), [1] and was *1071 awarded fifty per cent of all monies it had paid, including penalties and interest, and fifty per cent of future benefits to be paid by Old Republic....

...1977), for success in having the order so modified. Petitioner contends that the instant case conflicts with Parrish on the issue of the propriety of an attorney's fee award when an employer or carrier unsuccessfully asserts a lien in the circuit court under section 440.39(3)(a), and that Parrish was interpreted incorrectly in Cartier. A careful reading of the statutes and case law controlling this issue supports the result reached by the district court below. All parties agree that nothing in section 440.39, Florida Statutes (1975), permits the trial court to award claimant attorney's fees....

...nal judgment by granting appellant a set-off from the jury's award of the amounts paid to Luis Arza as workers' compensation benefits, section 768.50, Florida Statutes (1983), and (b) strike the notice of workers' compensation lien filed pursuant to section 440.39, Florida Statutes (1983), by plaintiff's employer and its workers' compensation carrier against plaintiff's recovery....

...ton/Fisher standard and the trial court was right in dismissing the complaint. In light of the affirmance of the trial court's dismissal of the direct action for damages against the employer, we agree with plaintiff that the declaratory action under section 440.39(7), Florida Statutes (1997) should be permitted to continue to see if any third persons may be civilly responsible for the loss. AFFIRMED in part; REVERSED and REMANDED for proceedings under section 440.39(7), Florida Statutes (1997)....

...fendant. In Counts VII (Orlando) and VIII (Magaly), the appellants bring spoliation claims against Rinker for failing to preserve evidence critical to both suits. Appellants maintain that all four of these counts are founded on alleged violations of section 440.39(7), Florida Statutes (2006)....

...In other words, a "dismissal should be granted only when it has conclusively been demonstrated that plaintiff can prove no set of facts whatsoever in support of the cause of action." Yates v. Publix Super Markets, 924 So.2d 832, 834 (Fla. 4th DCA 2006) (on rehearing). Section 440.39(7), Florida Statutes (2006) [1] part of the Worker's Compensation Statute, imposes a duty of cooperation on the employer and employee in claims against third party tortfeasors, which includes a duty to preserve evidence critical to the suit. Builder's Square, Inc. v. Shaw, 755 So.2d 721 (Fla. 4th DCA 1999). "One of the most important rules and conditions stated in the Workers Compensation statute is the duty to cooperate" found in section 440.39(7). Shaw v. Cambridge Integrated Servs. Group, Inc., 888 So.2d 58, 64 (Fla. 4th DCA 2004). Section 440.39(7) states: (7) The employee, employer, and carrier have a duty to cooperate with each other in investigating and prosecuting claims and potential claims against third-party tortfeasors by producing nonprivileged documents and allowing inspection of premises, but only to the extent necessary for such purpose....

...[2] Nevertheless, they bring the spoliation counts simultaneously with the underlying action which is contrary to the teachings of Martino. In attempting to distinguish Martino, appellants argue that Martino was a common law spoliation claim; whereas in this case the spoliation claims are made pursuant to section 440.39(7). To support this distinction, the plaintiffs rely on Yates. The plaintiff in Yates filed a claim based on an alleged violation of section 440.39(7). The claim, however, was filed after the underlying negligence claim had been settled. Citing common law spoliation cases, this Court concluded that a claim for spoliation pursuant to section 440.39(7) "does not arise until the underlying action is completed." 924 So.2d at 833 (internal quotations omitted). Hence, by implication Yates stands for the proposition that the elements of common law spoliation must be met before proceeding with *672 a spoliation claim pursuant to section 440.39(7)....

...not be maintained until the underlying negligence claim is decided. Analyzing the 2000 accident is a little different because Rinker is not a first-party defendant in that pending action, unlike this case. However, spoliation claims made pursuant to section 440.39(7) must still meet the elements of common law spoliation as set forth above....

...Therefore, concerning the spoliation counts as to both the 2000 and 2001 accidents, we conclude the trial court was correct in determining that they were premature because the underlying negligence claims are not yet resolved. As to the duty to cooperate, Counts V and VI, we note that the duty to cooperate pursuant to section 440.39(7), Florida Statutes (2006) encompasses more than just a duty to preserve evidence. See Yates, 924 So.2d at 834 (on rehearing) ("Spoliation of evidence is simply one form of failing to cooperate under section 440.39(7)")....

...Statutes. We find this issue to be likewise without merit. The asserted offset was based on the appellant Michael Bruner's receipt of workers' compensation benefits, for which the workers' compensation insurer had a statutory subrogation right under section 440.39(2), Florida Statutes....

...Its liability as a defendant in the appellants' separate civil action is unaffected by the private allocation of rights in the workers' compensation action. A collateral source offset pursuant to section 768.76(1) is not allowed due to the statutory subrogation right which pertains under section 440.39(2), as section 768.76 does not imbue a wrongful tortfeasor with the benefit of a plaintiff's settlement of a third party claim with a negotiated subrogation waiver....

...I write separately to more fully explain what I believe to be the basis for the majority's holding. Section 768.76(1) permits a tortfeasor an offset in the amount of any collateral source of indemnity unless the source of indemnity has a right of subrogation. Under section 440.39(2), Florida Statutes, an employer or workers' compensation insurer has a right of subrogation to an injured employee's rights against a third-party tortfeasor....

...App. 1974, 292 So.2d 39. We discuss herein only the alternative contention, which we feel has merit. In the Reyes case, supra, we analogized the equitable distribution provisions of § 627.736(3)(b), F.S., to the equitable distribution provisions of § 440.39(3)(a), F.S., the workmen's compensation statute, and adopted the view, theretofore established in cases involving equitable distribution under the workmen's compensation statute, that no precise formula could be devised to be applied in eve...

...Horton & Schwartz, Sams, Anderson, Alper & Spencer, Miami, for appellees. Before PEARSON, BARKDULL and SWANN, JJ. PER CURIAM. The appellant, a compensation carrier, seeks review of an order of equitable distribution entered by the trial court pursuant to § 440.39(3) (a), Fla....

...ty 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)....

...ance 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.......

...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....

...automobile accident while employed by Payless. We reverse the order as to the amount of money immediately recoverable by the insurer from the settlement proceeds and in regards to the total amount that the insurer will be permitted to recover. Under section 440.39(3)(a), Florida Statutes (1983), [1] a workers' compensation carrier is entitled to a lien on third-party settlement proceeds for both past workers' compensation benefits paid and those to be paid in the future....

...yee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee. § 440.39(3), Fla....

...Rehearing Denied April 7, 1981. R.K. Roberson of Roberson & Roberson, Deland, for appellant. C. Thomas Ferrara, of Pitts, Eubanks & Ross, Deland, for appellees. WENTWORTH, Associate Judge. This is an appeal from an order of proration entered pursuant to Section 440.39(3)(a), Florida Statutes (1975)....

...Travelers Insurance Company, Halifax's compensation carrier, paid Edmondson a total of $42,191.36. During the pendency of the suit against the third-party tortfeasor, Travelers filed a "Notice of Payment of Compensation and Medical Benefits" for workmen's compensation benefits paid and to be paid to Edmondson. § 440.39(3)(a), F.S....

...ensation benefits due was scheduled for hearing in March, 1978. Travelers subsequently filed amended notices of payment and a petition for proration. The trial court ordered Edmondson to pay Travelers $4,365.22 "per the provisions of Florida Statute 440.39(3)(a)" based upon his finding that Edmondson failed to establish that he did not recover from the third party tortfeasor the full value of his damages because of comparative negligence or the limits of insurance liability and collectibility. The court also denied Edmondson's petition for attorney's fees. Edmondson asserts that the court erred in failing to equitably distribute the amount recovered. We find no reversible error. Section 440.39(3)(a) provides: The employer or carrier shall recover 50 percent of what it has paid and future benefits to be paid unless the employee or *554 dependent can demonstrate to the court that he did not recover the full value of damages su...

...ogation lien, which is discussed below. No supplemental benefits were paid after May 15, 1995. Although Lombardi obtained indemnity and medical benefits from the E/SA, he also elected to file a negligence complaint in circuit court, as authorized by section 440.39(1), Florida Statutes (1993), against the homeowners of the property where he was injured. Under section 440.39(2), the E/SA then became subrogated to Lombardi's rights against the homeowners to the extent of the amount of compensation benefits paid and to be paid. The appropriate notice was filed by the E/SA under section 440.39(3), establishing a lien on Lombardi's claim....

...bardi was comparatively negligent, were $250,000. Following the deduction of attorney's fees and costs incurred in the action ($37,329) from the $100,000 sum, Lombardi's net recovery was $62,671. The circuit court judge determined, after considering section 440.39(3), that the $62,671 Lombardi received was 25 percent of his total damages; therefore, the E/SA was entitled to the same percentage of reimbursement....

...Nevertheless, because this is an issue of first impression, we certify the following question to the Florida Supreme Court as one of great public importance: WHEN AN EMPLOYER/CARRIER IS ENTITLED TO REDUCE A CLAIMANT'S COMPENSATION BENEFITS AS A RESULT OF A SUBROGATION LIEN UNDER SECTION 440.39, FLORIDA STATUTES, SHOULD THE EMPLOYER/CARRIER APPLY THE LIEN REDUCTION *495 BEFORE OR AFTER CALCULATING TOTAL BENEFITS AND APPLYING THE 100 PERCENT AVERAGE WEEKLY WAGE CAP AND RESULTANT OFFSET AUTHORIZED BY SECTION 440.20(15), FLORIDA STATUTES, AND ESCAMBIA COUNTY SHERIFF'S DEP'T v....

...Wuelling, 674 So.2d 881 (Fla. 1st DCA 1996) (on motion to dismiss); Commercial Carrier Corp. v. LaPointe, 723 So.2d 912, 914 n. 1 (Fla. 1st DCA 1999). Turning next to the issues raised on cross-appeal, Lombardi first argues that the JCC erred in interpreting section 440.39, Florida Statutes (1993), by allowing the E/SA to recover the entire amount of his $62,671 net recovery for its subrogation lien....

...ent, the E/SA's lien should be restricted or capped at 25 percent of the net recovery ($62,671), or $15,667.75. Thus, Lombardi argues that the E/SA should receive a percentage of the percentage of the total damages. The E/SA maintains, however, that section 440.39 allows no such percentage restriction or cap. Rather, it should receive the same percentage of total damages as claimant received. In support of their contrary positions, the parties rely on the same language in section 440.39(3)(a), which states as follows: [I]f the employee ......

...In reaching this conclusion, we have considered Nikula v. Michigan Mutual Insurance, 531 So.2d 330 (Fla.1988), and Manfredo v. Employer's Casualty Insurance Co., 560 So.2d 1162 (Fla.1990). Admittedly, both of these cases dealt with earlier versions of section 440.39(3), but our review of the statute's history implies that the version in effect in 1993, when claimant's accident occurred, was a result of the discussion in Nikula....

...The 1981 statute at issue in Nikula merely provided that the employer/carrier would receive 100 percent of what it had paid unless the employee demonstrated that he or she did not recover the full value of damages sustained. See Nikula, 531 So.2d at 331 (quoting § 440.39(3), Fla....

...that the "lienholder should be reimbursed in the same ratio as the injured worker" and that the "lien shall be based upon the ratio of settlement amount to full value of damages." Id. at 332, 330. This language, when considered in pari materia with section 440.39(3), supports the claimant's interpretation of the statute as capping or limiting the lien to a percentage of the percentage recovered....

...damages for pain and suffering and loss of consortium. Those are damages claimant obtained in his action over and above economic and medical damages to which the E/SA is entitled. We cannot believe the legislature intended such a result in enacting section 440.39(3)(a)....

...ent into account. [2] Nevertheless, because this too is an issue of first impression, we certify the following question to the Florida Supreme Court as one of great public importance: WHEN THE EMPLOYER/CARRIER IS ENTITLED TO A SUBROGATION LIEN UNDER SECTION 440.39, FLORIDA STATUTES (1993), AND THE CLAIMANT'S NET RECOVERY IN A SETTLEMENT WITH THE THIRD-PARTY TORTFEASOR IS *497 LESS THAN 100 PERCENT OF THE CLAIMANT'S TOTAL DAMAGES, SHOULD THE EMPLOYER/CARRER'S LIEN BE LIMITED TO A PERCENTAGE OF TH...

...Hence Judge Henning found that the employer/carrier was entitled to a 25% recovery ratio on all past and future compensation and medical benefits. The claimant was ordered to pay $10,307.19 to the employer/carrier on the total paid in compensation benefits through December 14, 1994 which amounted to $41,228.76. 24. Section 440.39, Fla....

...(1993), states that if the employee did not recover the full value of damages sustained, the "employer and carrier shall recover ... a percentage ... equal to the percentage that the employee's net recovery is of the full value of the employee's damages." The net recovery to the claimant was 25% of $250,000, or $62,671. Sec. 440.39, Fla....

...mployer/ *499 carrier was 25% of $62,671 (or 25% of the 25% of the full value of damages). I dissent from the majority's adoption of the "percentage of a percentage" approach which the judge of compensation claims— rightly, in my opinion—rejected. Section 440.39, Florida Statutes (1993), provides in part: (1) If an employee, subject to the provisions of the Workers' Compensation Law, is injured ......

...s fail to agree on the proportion to be paid to each, the circuit court of the county in which the cause of action arose shall determine the amount to be paid to each by such third-party tortfeasor in accordance with the provisions of paragraph (a). § 440.39, Fla....

...Hammons, of Hammons, Roark & Whittaker, P.A., Pensacola, for appellant. *64 L. Kathleen Horton-Brown, of Partington, Hart, Hart & Johnson, Pensacola, for appellee Auto-Owners Ins. Co. WIGGINTON, Judge. Appellant appeals the trial court's order granting Auto-Owners Insurance Company's motion to assess, pursuant to section 440.39(3)(a), Florida Statutes (1979), a workers' compensation lien on the net proceeds to appellant from settlement of a third party tort-feasor action filed by appellant and his wife....

...-Owners, appellant's employer's workers' compensation insurer. Appellant sued a third party tort-feasor and settled the case for substantially less than the full amount of his damages due to the questionable liability of the third party. Pursuant to section 440.39(3)(a), Florida Statutes (1979), the trial judge entered an order requiring payment, after deductions for attorney's fees and costs, to Auto-Owners of 100 percent of the workers' compensation benefits, past and future, paid by Auto-Owners to appellant up to a maximum of appellant's net recovery from the third party tort-feasor. The applicable statute in this case, section 440.39(3)(a), Florida Statutes (1979) provides, in pertinent part: Upon [third party tort-feasor] suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medica...

...of limits of insurance coverage and collectibility. The burden of proof will be upon the employee. (Emphasis supplied.) Appellant contends that the trial court's assessment of a 100 percent lien in favor of Auto-Owners was an improper application of section 440.39(3)(a) since appellant recovered substantially less than the full value of his damages because of questionable liability on the part of the alleged tort-feasor....

...Appellant also urges that the trial court erred in requiring him to bear the cost of all attorney's fees in the portion of the settlement proceeds retained by him rather than requiring the carrier to bear a proportionate share of those fees based on its lien recovery. However, 440.39(3)(a), Florida Statutes (1979), specifically provides that the carrier shall recover from the judgment, "after attorney's fees and costs incurred by the employee or dependent in that suit have been deducted," 100 *65 percent of the workers' compensation payments it has made....

...Under that statute, to diminish the carrier's reimbursement by any share of the attorney's fees would be error. Risk Management Services, Inc. v. Scott, 414 So.2d 220 (Fla. 1st DCA 1982); Lee v. Risk Management, Inc., 409 So.2d 1163 (Fla. 3d DCA 1982). Appellant further contends that application in the instant case of section 440.39(3)(a), Florida Statutes (1979), is unconstitutional in that it violates the equal protection and due process clauses of the United States and Florida Constitutions and article I, section 2 of the Florida Constitution providing for equal access to the courts....

...Daze of Haas, Boehm, Brown & Rigdon, P.A., Orlando, for appellant. William A. Patterson of Masterson, Rogers, Patterson & Masterson, P.A., St. Petersburg, for appellee. PER CURIAM. Appellant complains that the court erred in limiting its claim for reimbursement of workers' compensation benefits under section 440.39, Florida Statutes (1981)....

...One of his duties was to give signals to the crane operator warning him to keep the crane away from the power line. The deposition of a doctor who treated Grattan was introduced into evidence as well as a copy of Grattan's medical records. The court awarded the carrier reimbursement in the sum of $1,386.40. Section 440.39(3)(a), Florida Statutes (1981), the statute applicable to these proceedings, reads in pertinent part: Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compens...

...4th DCA 1982), as holding that the judge is bound by the defense attorney's evaluation where, as here, there was other evidence bearing upon the extent of the claimant's negligence. Hence, we cannot accept this aspect of the carrier's argument. Based upon the court's findings, section 440.39, Florida Statutes (1981), called for the carrier to receive $22,410.40 in reimbursement....

...parties agreed that the amount of reimbursement should be determined according to the formula set forth in National Ben Franklin Insurance Co. v. Hall, 340 So.2d 1269 (Fla. 4th DCA 1976). Apparently, the parties were unaware that a 1977 amendment to section 440.39(3)(a) substantially changed the wording of the statute and rendered the National Ben Franklin formula obsolete....

...*1092 Horton, Perse & Ginsberg and Edward Perse, James Schmick, Miami, for appellee. Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ. PER CURIAM. The insurer appeals from the trial court's determination of the subrogation lien awarded pursuant to Section 440.39, Florida Statutes (1981)....

...Therefore, we reverse the award of temporary partial disability benefits and remand for entry of an adequately specific order on this issue. The JCC also erred in assuming jurisdiction to resolve the parties' dispute over a third-party tort-feasor lien when section 440.39(3)(b), Florida Statutes, specifically provides that subject matter jurisdiction of that dispute rests in the appropriate circuit court....

CARLTON, Justice: By a carrier’s petition and a claimant’s cross-petition, we have for review on conflict certiorari 1 a dispute over the proper application of subsections (3) and (4) of Fla.Stat. § 440.39, F.S.A., as they relate to a suit brought by the carrier, against a third party tortfeasor, within the second year after an accident involving the claimant....

...�s Compensation benefits. A little more than a year later, on June 27, 1969, Aetna (the compensation carrier for Bortz’ employer) filed suit against Cooper, for Aetna individually and for the use and benefit of Bortz, under authority of Fla.Stat., § 440.39(4) (a), F.S.A....

...ot already sued or settled. After Aetna filed suit, Bortz, at the advice of his own private counsel, began to question the carrier’s right to proceed. On August 11, 1969, Aetna sought to have the trial court advise Bortz of the effect of Fla.Stat. § 440.39(4) (a), F.S.A....

...Subsequently, Bortz did respond to the interrogatories; counsel for both Aetna and Bortz attended the taking of depositions. On November 20, 1969, the trial court entered an order allowing Bortz to substitute counsel, but retaining Aetna as a party plaintiff. This provoked a motion for rehearing by Aetna, based on Fla.Stat. § 440.39(4) (a), F.S.A., and Jersey Ins....

...bility. Thereafter, on February 19, 1970, a verdict was rendered in favor of “Aetna Casualty & Surety Company, individually, and for the use and benefit of Edwin Charles Bortz,” and the sum of $5,100.00 was given in judgment. Under Fla.Stat. § 440.39, F....

...On May 12, 1970, rehearing was granted, and *111 the trial court reversed itself. Agreeing with Bortz that subsection (3) (a) should apply, notwithstanding the fact that the carrier filed the suit under subsection (4) (a), the court said on rehearing: “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 plaintiff insurer, Aetna Casualty & Surety Co., to be $2,000.00 herein.” The litigants were again directed to bear their own costs....

...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.S.A....

...Moore, 143 So.2d S41 (2nd D.C.A.Fla.1962), and Zurich Insurance Co. v. Renton, 189 So.2d 492 (2nd D.C.A.Fla.1966). We agree with the dissenting District Court Judge. The judgment of the trial court on rehearing should have been reversed. Subsections (3) (a) and (4) (a) of Fla.Stat. § 440.39, F.S.A....

...t or settlement, and when it is done (Laws 1951, ch. 26546, § 1; Laws 1959, ch. 59-431; Laws 1970, ch. 70-148 § 6). The distinction in recovery rights between what are now designated as subsections (3) (a) and (b), and (4) (a) and (b) of Fla.Stat. § 440.39, F.S.A., has not gone unnoticed in the treatises and commentaries....

...2d 433 (3rd D.C.A.Fla.1962); Bituminous Cas. Co. v. Florida Power & Light, 190 So.2d 426 (4th D.C.A.Fla.1966). And recently, in Trail Builders Supply Co. v. Reagan, 235 So.2d 482, 484 (Fla.1970), this Court, in discussing the operation of Fla. Stat. § 440.39 , F.S.A., said: “3. If the employee recovers, the employer has a lien on the proceeds and can recover by way of equitable distribution all or a portion of the benefits conferred by the Act on the employee. F.S.1967, § 440.39(3) F.S.A. “4. If the employee does not within one year sue the third party tortfeasor, then the employer may sue and get back all of the benefits the employer has paid the employee. F.S.1967, § 440.39(4) F....

...days' imprisonment. . . ." § 440.11(1)(b). Twelve years ago in General Cinema Beverages of Miami, Inc. v. Mortimer, 689 So.2d 276, 278 (Fla. 3d DCA 1995), we found for the first time in a different section of the Florida Workers' Compensation Law, section 440.39(7), Florida Statutes (1989), an additional, implied exception to employer immunity to allow an action by a covered employee against his employer for negligent destruction of evidence where his recovery against a third-party tortfeasor...

...from the ladder manufacturer. Approving a jury verdict for spoliation of evidence against Builder's Square, the court opined, "Before it proceeded to dispose of any of [the ladders,] the statutory duty of cooperation with its injured employee [under section 440.39(7) of the Florida Statutes] should certainly have suggested that it consult with the employee." Id....

...As the Perezes urge in this case, the Fourth District Court of Appeal apparently imputed to the employer a commonly perceived truth of the times that litigation arising out of the accident was "foreseeable," if not inevitable, and hence the employer had a duty under section 440.39(7)....

...In fact, barring the rare case where the employer has engaged in intentional conduct, it is neither in the legal nor financial interest of the employer to dispose of evidence to protect a third party such as R & R to the detriment of its employee. To the contrary, section 440.39(7) contemplates the employer and employee cooperating to seek their respective entitlements from third parties. See § 440.39(3), Fla....

...defendant received actual notice before destroying the transformer). That is not the case here. In fact, permitting the pursuit of this action by the Perezes would be little more than authorizing the pursuit of a triple recovery. Affirmed. NOTES [1] Section 440.39(7) states: The employee, employer, and carrier have a duty to cooperate with each other in investigating and prosecuting claims and potential claims against third-party tortfeasors by producing nonprivileged documents and allowing inspection of premises, but only to the extent necessary for such purpose....

...Upon Norton’s receipt of a cash settlement from the third-party tortfeasor, a workers’ compensation hen was placed on the settlement funds to prevent Norton from receiving a double recovery in violation of the workers’ compensation laws. See § 440.39(3)(a), Fla....

...l court determined the amount of the appellants’ lien. He thus was not entitled to an award of interest for the time a disposition was pending. Further, the workers’ compensation laws make no provision for an award of interest in this context as section 440.39(3)(a) provides only for the deduction of costs and attorney’s fees “from the fund representing recovery.” Fallen, 603 So.2d at 612-13 ....

...industrial accident and requiring the employer/carrier to pay medical expenses and workmen's compensation benefits. Pyles filed a third-party malpractice action against the hospital, several physicians and their insurance carriers. Pursuant to F.S., § 440.39 F.S.A....

...gligence. The Florida statute, [1] like the amended Illinois statute, by its terms does not preclude a negligent employer or its insurance carrier from recovering the benefits paid the injured employee, regardless of the employer's negligence. F.S., Section 440.39 F.S.A....

...jured employee, except if the injury was occasioned primarily by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another. See, F.S., §§ 440.09 and 440.10 F.S.A. *396 The provisions of F.S., § 440.39 F.S.A....

...nsidered as a factor in determining the amount of the equitable distribution of workmen's compensation liens in third-party tort actions. The final order appealed is, therefore, Affirmed. LILES, Acting C.J., and BOARDMAN, J., concur. NOTES [1] F.S., Section 440.39 F.S.A.: "(3)(a) In all claims or actions at law against a third party tort-feasor, the employee, or his dependents, or those entitled by law to sue in the event he is deceased, shall sue for the employee individually, and for the use a...

...The wherefore clause again requested general damages, not limiting the request to those damages paid by the carrier. The carrier filed a Second Amended Complaint, adding newly-discovered defendants. The case was again styled as a subrogation claim, but now limited its request for damages to those available under section 440.39, Florida Statutes (2000)....

...This time the plaintiff was identified as the guardian of the person and property of the injured party. The allegations of negligence and damages remained the same. There was, however, no mention of damages on behalf of the carrier, subrogation rights, or section 440.39....

...The trial court granted the motion and vacated the default; the Motion for Rehearing was denied. Almost two months later, the defendants filed a Motion for Final Summary Judgment, arguing the Fourth Amended Complaint violated the applicable statute of limitations under sections 95.11 and 440.39, Florida Statutes (2000)....

...The guardian argues the trial court erred in entering summary judgment because the Fourth Amended Complaint relates back to the filing of the original complaint and therefore does not violate the statute of limitations. The defendants respond that the complaint violates sections 95.11 and 440.39 because it transformed the cause of action from a subrogation claim to a direct negligence claim six years after the accident occurred. We review summary judgments de novo. Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA2006). Section 440.39, Florida Statutes (2000), provides: (4)(a) If the injured employee ......

...fits payable, to be reduced to its present value, and to be retained as a trust fund from which future payments of compensation are to be made.... The remainder of the moneys derived from such judgment or settlement shall be paid to the employee.... § 440.39(4)(a), Fla....

...t 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....

...The wherefore clause requested damages in general; it did not restrict the request to those damages paid by the carrier. While subsequent amendments to the complaint changed the style to reflect a subrogation claim and appeared to restrict the claim for damages to those paid by the carrier, section 440.39(4) specifically provides for the carrier to bring a claim for all damages. To the extent any recovery exceeds amounts paid by the carrier, those “moneys derived from such judgment or settlement shall be paid to the employee.” § 440.39(4)(a), Fla....

...Timothy Gayer appeals a summary judgment entered in favor of Fine Line on Gayer's spoliation of evidence claim. Appearing as an issue of first impression, we conclude that a special employer using a laborer from a help supply services company has a duty under section 440.39(7), Florida Statutes, to preserve evidence for the injured laborer's claim against a third-party tortfeasor....

...Fine Line ultimately obtained summary judgment on the negligence claim. Gayer subsequently amended his complaint to allege a spoliation claim for the lost ladder against Fine Line and Labor *426 Finders. Fine Line moved for summary judgment, arguing that it had no duty to preserve the ladder under section 440.39(7), Florida Statutes, because Fine Line was not Gayer's "employer." The trial court granted Fine Line's motion and entered final judgment for Fine Line on the spoliation claim....

...ust originate either in a contract, a statute, or a discovery request. Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So.2d 843, 845 (Fla. 4th DCA 2004). Gayer does not allege a contractual duty or a duty arising from a discovery request. Citing section 440.39(7), Florida Statutes, Gayer argues that Fine Line had a statutory duty to preserve evidence. Included in the Florida Workers' Compensation Act (Act), [2] section 440.39(7) states: "The employee, employer, and carrier have a duty to cooperate with each other in investigating and prosecuting claims and potential claims against third-party tortfeasors by producing nonprivileged documents and allowing ins...

...Mortimer, 689 So.2d 276, 279 (Fla. 3d DCA 1995) court explained that the duty to cooperate "must necessarily include a duty to preserve evidence." Accord Shaw v. Cambridge Integrated Servs., 888 So.2d 58, 61-62 (Fla. 4th DCA 2004) (recognizing that section 440.39(7), Florida Statutes, creates an independent cause of action for spoliation of evidence)....

...ther lawfully or unlawfully employed. . . ." § 440.02(14)(a), Fla. Stat. "`Employment' . . . means any service performed by an employee for the person employing him or her." § 440.02(16)(a), Fla. Stat. The context of the disputed subsection (7) is section 440.39. "The point of section 440.39 is to preserve causes of action against third-party tortfeasors and to impose a duty of cooperation to that end." General Cinema, 689 So.2d at 279. Section 440.39 also contains a statutory subrogation scheme that prevents double recovery to an employee by giving "the entity that paid the workers compensation benefits[,] ....

...rkers' compensation purposes, as employees of the employer to whom they have been sent to work." (citing § 440.11(2), Fla. Stat.)). Here, the parties fit the broad definitions of "employer" and "employee" under the Act. Additionally, the context of section 440.39(7) does not require another meaning to the term "employer" or "employee." Subsection (7) aims to preserve an employee's claim against a third party tortfeasor by requiring an employer to, inter alia, "allow[ ] inspection of premises."...

...to the rest of the Act. Finally, whether Fine Line had notice of Gayer's request to preserve the ladder is not an issue on appeal. We conclude that a special employer of a borrowed employee fits the definition of "employer," as that term is used in section 440.39(7), and remand for further proceedings on the spoliation claim....

...Richardson-Greenshields Sec., Inc., 552 So.2d 1099, 1101 (Fla.1989) (footnote omitted). ERPOC contends that the present case is different because Mr. Powers obtained a judgment against it (as well as the fellow employee) in circuit court. *285 But an offset can be allowed to prevent double recovery, see § 440.39(3)(a), Fla....

...Publix also argued that the statutory basis relied on by plaintiff was limited to a claim for spoliation of evidence, which was barred. The trial judge agreed and granted the motion. We reverse. In count I plaintiff alleged a statutory basis for suit against her husband's employer under section 440.39(7), which provides: "The employee, employer, and carrier have a duty to cooperate with each other in investigating and prosecuting claims and potential claims against third-party tortfeasors by producing nonprivileged documents and allowing inspection of premises, but only to the extent necessary for such purpose." § 440.39(7), Fla....

...nly after the action against the third party tortfeasor was compromised and settled. The complaint did not indicate a limitations bar. It was error to dismiss on this ground. We note that the trial court held that the only cause of action allowed by section 440.39(7) is a spoliation of evidence claim....

...We deny appellee's motion for rehearing. Appellant's motion for clarification requires rehearing and further comment. Our opinion on the merits contained the following paragraph: We note that the trial court held that the only cause of action allowed by section 440.39(7) is a spoliation of evidence claim....

...The trial judge ruled that neither theory stated a cause of action and dismissed the complaint accordingly. Upon further review we conclude that our above quoted attempt at judicial parsimony was misplaced. Spoliation of evidence is simply one form of failing to cooperate under section 440.39(7)....

...4th DCA 2004). Thus at this point, we have determined only that plaintiff has pleaded enough to be able to offer evidence on her claims. Whether she has any evidence, and whether such evidence legally amounts to a failure to cooperate or spoliation within section 440.39(7) can all be tested after some discovery on a motion for summary judgment....

...issed; [2] there being no pending case, intervention was not available. [3] Any right appellant had to subrogation was not timely asserted. The judgment appealed is affirmed. WIGGINTON, J., and POWELL, GILLIS E., Associate Judge, concur. NOTES [1] F.S. 440.39(3)(a), F.S.A....

...This portion of the non-final order is appealable. Fla. R. App. P. 9.130(a)(3)(C)(xi).1 As to that ruling, we affirm. 1 The trial court also ruled on assignability of the claim against the School Board and the timeliness of the lawsuit against it given the provisions of section 440.39(4), Florida Statutes (2011)....

...Relying on American Motorists Insurance Co. v. Coll, 479 So.2d 156 (Fla. 3d DCA 1985), review denied, 488 So.2d 829 (Fla. 1986), and Rosabal v. Arza, 495 So.2d 846 (Fla. 3d DCA 1986), the court below held that assessing a worker's compensation lien filed under section 440.39, Florida Statutes (1985), against the settlement proceeds of a medical malpractice claim was contrary to section 768.50, Florida Statutes (1985)....

...Appellants' first point is whether the lower court erred in granting the motion for equitable distribution, contending that the appellee waived any rights it may have had when it failed to file its notice while the lawsuit was in progress as required by Section 440.39(3)(a), Florida Statutes (1977), citing Maryland Casualty Co....

...was entered the compensability of the workmen's compensation claim had not been finally determined; that until such time as it was required by the industrial claims' order to pay benefits it was required to file nothing in appellants' civil action. Section 440.39(3)(a), supra, provides not only for filing in the suit of a notice of payment of compensation and medical benefits to the employee but requires that "said notice shall be recorded......

...s subsequent appeal, Ohio Casualty Group v. Parrish, 350 So.2d 466, 469-70 (Fla. 1977), nothing in section 440.34(1) can be read as deterring a carrier from filing a legitimate statutory claim of lien in a pending third-party damage suit pursuant to section 440.39, Florida Statutes (1977), let alone as penalizing the carrier for waiving part or all of that lien as part of a settlement by which the employer avoids further potential liability as an indemnitor....

...In Caravasios, the insured claimant suffered a compensable injury in 1975 and recovered a substantial verdict against the third-party tort feasor in an action in circuit court. The workers' compensation carrier moved for its statutory share pursuant to a notice of lien filed under section 440.39(3)(a), Florida Statutes (1975), and was awarded 50% of all monies it had paid, including penalties and interest, and 50% of future benefits to be paid....

...Accordingly, that portion of the deputy's order awarding a second attorney's fee for the services of claimant's attorney in negotiating a waiver of the carrier's lien is reversed. AFFIRMED in part and REVERSED in part. SMITH and WENTWORTH, JJ., concur. NOTES [1] § 440.39, Fla....

...Risk Management was the proper one and utilized it in its determination of the amount of the lien. That decision gave rise to the first point in this appeal; the appropriate formula to be utilized in determining the amount of the compensation carrier's lien. The pertinent statute involved here is section 440.39(3)(a), Florida Statutes (1979)....

...Upon the evidence presented the Court finds as follows: 1. That it has subject matter jurisdiction to determine the questions raised in the plaintiff's emergency motion, it being the trial court and accordingly the court to which application must be made. § 440.39(3)(a) F.S.A....

...All of the foregoing considered the court found that one million dollars constituted a fair and reasonable evaluation of the full value of the plaintiff's damages. 6. That the plaintiff was himself negligent which negligence was a legal cause of his injury. Section 440.39(3)(a), Florida Statutes provides as follows: "......

the petition for equitable distribution under Section 440.39 (3), Florida Statutes, F.S.A. Appellants seek

...that comparative negligence caused him to accept a settlement of $6,500. After hearing argument of counsel, the trial court awarded appellant $1,250. Appellant contends that the trial court erred because it failed to comply with the requirements of Section 440.39(3)(a), Florida Statutes (1981). We agree and reverse. Section 440.39(3)(a) provides in part: The employer or carrier shall recover from the judgment, after attorney's fees and costs incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits...

...4th DCA 1984). Appellee's failure to introduce competent evidence or testimony to establish that comparative negligence reduced the full value of his claim requires us to reverse the trial court's order which awarded appellant less than 100% of its lien. See § 440.39(3)(a); Whitely v....

...After extended litigation Williams successfully recovered a judgment against Seaboard. A motion for equitable distribution filed on behalf of United States Fidelity and Guaranty Company was denied by the trial court because the compensation carrier's notice of lien was not recorded. It is that order we have for review. Section 440.39(3)(a), Florida Statutes (1977), provides in pertinent part: "......

...ack of notice. Nonetheless, in Cook Motor Company v. Vaughn, 189 So.2d 536 (Fla. 1st DCA 1966), a case in which the carrier had not filed a notice of payment of compensation in the suit, the court held the carrier was not entitled to the benefits of Section 440.39(3)(a) even though all parties had knowledge of the existence of the payment of compensation to the employee....

...This position can be justified because the carrier's subrogation rights are a creature of statute and in order to be entitled to the benefits of the statute the claimant must conform to the requirements of the statute. As the court stated in Cook, supra : "... In 1951 the legislature amended Section 440.39, Florida Statutes, F.S.A....

...t to avail itself of the benefits conferred by statute, it must comply with the rules, regulations, burdens and conditions provided by law. The conditions prerequisite for subrogation in such cases are those set forth in the first paragraph under subsection 440.39(3) — that is, filing in the suit notice of payment of compensation and serving notice of payment of compensation upon all parties to the suit." 189 So.2d at 538....

...part. Thereafter, plaintiffs sought and obtained leave of court to further amend the complaint by adding Mrs. Douglas as a party defendant and by adding as an additional party plaintiff Reliance Insurance Company which claimed subrogation under F.S. section 440.39, F.S.A....

...to be added as a party plaintiff and to assert a right of recovery in its own behalf. When the injured employee initiates an action against the tortfeasor, the compensation carrier’s proper procedure to protect its right of subrogation under F.S. section 440.39, F.S.A....

...ion in its own name. See Ruskin v. Travelers Insurance Co., Fla.App.1960, 125 So.2d 766 . The fact remains, however, that irrespective of whether the action is brought by the injured employee, or whether the action is instituted by the carrier under Section 440.39(4) (a), and irrespective of the manner in which the action is styled, the cause of action remains purely and simply one for the injury to or death of the employee and should be submitted to the jury on matters relevant to the issues of...

...In December 1998, Circle K filed a “Motion for Equitable Distribution” requesting that the court determine its appropriate pro rata share of the benefits paid. Pursuant to motion by the Websters, the trial court “dismissed” the motion for equitable distribution. Under section 440.39(3)(a), once a suit is filed (and notice is sent to the employer) against a tortfeasor, the employer may file in the suit a “Notice of Payment of Compensation Benefits” to the employee....

...Where a case is settled in lieu of suit or during the pendency of a suit and the tortfeasor has notice of the employer’s interest in the settlement, the case should not be settled without the consent of the carrier or employer in order to protect the employer to the extent of benefits conferred. Generally, section 440.39(3)(b) is designed to prevent settlement between an employee and tortfeasor without notice to the carrier. Section 440.39(3)(b) preserves an employer’s right to obtain equitable distribution if its provisions are satisfied....

...he motorcycle, had no right in law to any recovery from its lessor, Ryder, the owner of the motorcycle, in order to recoup workmen's compensation benefits it had paid petitioner, neither petitioner nor his employer had any action against Ryder under Section 440.39 or otherwise....

...mages, he could have supported his argument that "there is no legal entitlement to preclude medical bill recovery, simply because the liability carrier pays for a release from the worker's compensation carrier." Florida Worker's Compensation Statute section 440.39(5) (1989), providing that settlement between the insurance carrier and a third party tort-feasor requires the agreement of the employer, does not contemplate or allow the carrier and the third party tort-feasor to settle away the employee's claim without his consent....

...“Some months (September of 1960) after suit was filed against the third party tort-feasors, compensation benefits were paid for the first time. “Shortly thereafter, on September 22, 1960, the carrier filed its notice of lien pursuant to the appropriate provisions of Section 440.39, F.S.2 “In due course the action against the third parties was settled for $70,000.00....

...In addition, the carrier is liable to the plaintiff for future benefits payable under the act in an amount that could, if necessary, be readily determined.” The trial judge found that the Carrier was entitled to proration under subsection (3) of § 440.39, as it existed prior to changes made by the 1959 Legislature....

...ting and prosecuting the action against the third party tort-feasor. Something that admittedly was not done here. “Interestingly enough (but with a different objective in mind) the plaintiff-employee likewise relies in part upon sub-section (4) of section 440.39 in support of its primary contention that *435 the carrier is entitled to absolutely nothing. “Plaintiff’s argument goes like this: Sub-section (3) of 440.39 applies only when the ‘third party action’ is brought within one year after the cause of action accrued, and subsection (4) applies to actions which are not brought within one year provided such actions are brought by the carrier (or self-insured employer)....

...e action against a third party tort-feasor, as provided in subsection (4), but failure or refusal to do so does not constitute an abandonment of its more limited subrogation rights, authorized by sub-section (2) and provided for in subsection (3) of section 440.39....

...And the court so finds.” “4. See Arex Indemnity Company v. Radin et al., Fla., 77 So.2d 839 , for a discussion of the distinctions between subsections (3) and (4). “5. Or a self-insured employer. Affirmed. . It should be noted that this appeal involves § 440.39, Fla.Stat., F.S.A....

...Orozco claimed that, as a result of the accident, he suffered memory loss and loss of cognitive ability as well as other physical and mental problems. This case subsequently settled for $150,000. AGC’s predecessor in interest filed a Notice Of Lien pursuant to section 440.39(3)(a), Florida Statutes (1991), for the amount it had *1035 paid in workers’ compensation to Orozco....

...The trial judge, sitting as the factfinder, determined that proper amount was $750,000. This finding is supported by competent, substantial evidence and an appellate court is therefore not entitled to reweigh the evidence. Noonan v. Snipes, 569 So.2d 1381 (Fla. 2d DCA 1990). Affirmed. . Section 440.39(3)(a) provides a means for a workers’ compensation carrier to recoup funds it has paid to a claimant when that claimant successfully sues a third-party tortfeasor....

...Inherent in the judge’s ruling, although not specifically enunciated, was the conclusion that the employee did not carry the burden of proving he recovered less than the full value of his damages because he failed to present expert witnesses who could buttress his claim. However, Section 440.39(3)(a) does not require expert witnesses, it requires the employee to “demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility....

...ed and suffered extensive back and neck pain for which Percodan was repeatedly prescribed. At one stage of the proceedings, the trial judge remarked that the hearing before him was not a substitute for a jury trial. However, in a sense it was. Under Section 440.39(3)(a), the burden of proof is to be carried by “demonstrat[ion] to the court.” From this we conclude that the court must weigh the evidence, just like a jury would, and evaluate the case if he has evidence before him which will permit it....

...statement about "three bites of the apple” because we conclude the first bite satisfies this court’s appetite. Had it not done so, we would agree with the compensation carrier that there were too many inroads into the apple. . We recognize that Section 440.39(3)(a) calls for the deduction of attorneys fees and costs.

husband, the trial court provided: “Pursuant to Section 440.39, Florida Statutes (F.S.A.), the employer, DEL-COOK

settlement proceeds. The trial court construed F.S.A.' § 440.39(3) (b) to mean that, where an injured employee

HERSEY, Judge. Appellant, worker’s compensation insurance carrier, seeks to overturn a determination of the trial court made pursuant to Section 440.39(3)(a), Florida Statutes (1981)....

...As a consequence, workers’ compensation benefits were paid and will continue to be paid in the future by Tarmac’s carrier, Liberty Mutual Insurance Company. Gwaltney sued the tortfeasor and Liberty Mutual filed a lien in that action pursuant to section 440.39(3)(a), Florida Statutes (1987), the pertinent portion of which provides: ......

...owing any reduction of future health care payments, the trial court cited as authority the case of Payless Oil Co. v. Reynolds, 565 So.2d 737 (Fla. 2d DCA 1990). The issue before us, quite simply, is whether the trial court has the discretion, under section 440.39(3)(a), to limit a carrier’s lien on future benefits to indemnity (compensation) benefits to the exclusion of medical benefits....

...Mr. Braun sustained the later work injury in a motor vehicle accident, on account of which he received $15,000 from a third-party tortfeasor. Under the Workers’ Compensation Law,: Brevard County had subrogation rights in these settlement proceeds, § 440.39, Fla....

...Insofar as pertinent here, the agreement called for Mr. Braun to bear 25% of the cost of future remedial care incurred on account of the 2005 accident. For purposes of appeal — no party having raised the question — we assume the validity of this agreement. But see § 440.39(2), Fla....

...unt it claimed for costs. Firstly, Southern contends on appeal that it was error for the trial court to hold that failure to wear a seat belt constitutes comparative negligence so as to warrant reduction of a worker’s compensation lien pursuant to section 440.39(3)(a), Florida Statutes....

...The sole point on this appeal is whether or not by entering into a “wash out” set *52 tlement, pursuant to the provisions of § 440.20(10), Fla.Stat., F.S.A., a compensation carrier is prevented from instituting a suit against a third party tort feasor pursuant to the provisions of § 440.39(2) (4) (a), Fla.Stat., F.S.A....

...We hold that it is not, and the carrier may institute an independent suit for the use and benefit of the claimant when the one year period from the date of the accrual of cause of action has expired and the claimant has not instituted an action against a third party tort feasor. See: § 440.39(4) (a), Fla.Stat., F.S.A....

...on. The gravamen of this controversy is found in the following excerpt from the 1975 version of the applicable Florida statute, the year 1975 being the one in which the employee was injured in a car accident while within the scope of his employment. Section 440.39 (4 through 6) reads in pertinent part: (4)(a) If the injured employee or his dependents, as the ease may be, fail to bring suit against such third party tort-feasor within 1 year after the cause of action thereof shall have accrued, th...

...nt, the Court overruled the defense as “full satisfaction”. However, the Court upholds the Fifth Defense as a “pro tanto satisfaction”. The Telegraph Company prior to being brought into the case as defendant filed a notice of lien under F.S. Section 440.39, F.S.A., for payment to plaintiff of compensation and medical benefits....

...from those proceeds the compensation death benefits paid. It is clear, however, that appellants’ lawyer did not say that a lien would not be filed. *898 In any event, ten days after that phone conversation, the appellants filed a lien pursuant to section 440.39(3)(a), Florida Statutes (1987), coincidentally the same day the parties to the malpractice action agreed on a settlement of that lawsuit....

...During the pendency of the case, however, appellant filed in the cause a “Notice of Payment of Compensation and Medical Benefits” for Workmen’s Compensation benefits paid and to be paid to appellees. Appellees filed a motion for equitable distribution to appellant pursuant to Section 440.39(3), Florida Statutes (1979), which motion was noticed for hearing by appellees on May 3rd at 8:45 a....

...Creamery Company v. Williams, 366 So.2d 458 (Fla. 4th DCA 1979). As applied here that case stands for the proposition that a compensation carrier is not entitled to equitable distribution if it does not file a claim of lien in a cause as provided by Section 440.39(3)(a), Florida Statutes (1979)....

...Jacobs, 402 So.2d 1261 (Fla. 3d DCA 1981), review denied, 412 So.2d 471 (Fla.1982); State v. Caldwell, 388 So.2d 640 (Fla. 1st DCA 1980); Fireman’s Insurance Co. v. Phillips, 368 So.2d 98 (Fla. 3d DCA 1979); §§ 90.703, 90.704, Fla.Stat. (1983); § 440.39(3)(a), Fla.Stat....

...on law, continue to place the responsibility for payment on the tort- *279 feasor. These laws give the carriers the right to recover from the plaintiffs judgment or settlement compensation payments made to the plaintiff, 5 U.S.C. § 8132 (1984); see § 440.39(2)-(4), Fla.Stat....

paving machine injury, they are entitled, under section 440.39, Florida Statutes (1989), to a portion of the

...binding contract and that the settlement check tendered pursuant to the offer of settlement was deficient because it included as a payee—along with Souders and his counsel—the carrier holding a workers’ compensation lien created by operation of section 440.39, Florida Statutes (2014). The Second District’s decision is in express and direct conflict with the decision of the Fourth District Court of Appeal in Cirrus Design Corp....

...tatutory workers’ compensation liens. Under the Workers’ Compensation Law, an employee injured in the course of employment by a third-party tortfeasor may accept workers’ compensation benefits and also sue the third-party tortfeasor. § 440.39(1), Fla. Stat. (2021). In such circumstances, the employee “shall sue for the employee individually and for the use and benefit of the employer, if a self-insurer, or employer’s insurance carrier.” § 440.39(3)(a), Fla....

...is filed, and the parties fail to agree on the proportion to be paid to each, the circuit court of the county in which the cause of action arose shall determine the amount to be paid to each by such third-party tortfeasor . . . . § 440.39(3)(b), Fla....

...ed - 15 - without the consent of the carrier or employer in order to protect the employer to the extent of benefits conferred.”). It is undisputed that the parties here were subject to the provisions of section 440.39 and that they were on notice of the carrier’s lien rights....

.... In line with this statute and the acknowledgement of lien rights by Souders, Suarez Trucking now argues that it simply did what “is customary when faced with a lienholder: it included that lienholder on the settlement check.” Suarez Trucking further argues that under section 440.39 if it “failed to include [the workers’ compensation carrier] on the settlement check and protect the lien, it could have faced a cause of action for impairment of lien or for subrogation.”...

...[the law firm] on the settlement check or obtaining [law firm’s] waiver of its lien in writing, or obtaining a Hold Harmless agreement from [firm receiving settlement proceeds]”). To the extent that Suarez Trucking can establish the existence of such a duty arising from section 440.39, it appears that analysis of the breach of contract issue should take that statute-based duty into account. - 17 -  The relevance of background legal requirements to the obligations of contracting parties is by no means a novel concept in our law....

...Thus, contractual language must be interpreted in light of existing law, the provisions of which are regarded as implied terms of the contract, regardless of whether the agreement refers to the governing law.” (footnotes omitted.)). As Souders admits, the parties here were subject to the provisions of section 440.39....

...term of 4. Although insurance carriers enjoy an automatic lien in a settlement with a third-party tortfeasor, the workers’ compensation statute clearly contemplates further negotiations and proceedings in the execution of the lien. See §§ 440.39(a)-(b), Fla....

...This is an appeal from an order entered upon a motion for equitable distribution in a personal injury suit. The plaintiff’s worker’s compensation carrier seeks to recover from its payee, the plaintiff, all benefits paid by the carrier in accordance with section 440.39(3)(a), Florida Statutes (1978)....

THORNAL, Justice. By petition for writ of certiorari Bur-dine’s, Inc. seeks review of an order entered by the Circuit Judge under Section 440.39, Florida Statutes, F.S.A., making equitable distribution of a settlement made by Mrs....

...There *260 after she pursued her remedies against a third party tort-feasor and made a substantial settlement. She petitioned the trial judge for an order making equitable distribution between herself and her late husband’s employer in accordance with Section 440.39, Florida Statutes, F.S.A....

BERANEK, Judge. This is an appeal from an order of equitable distribution under Section 440.39(3)(a) of the Florida Workmen’s Compensation Act....

...mployee. The employee, appellee herein, sued a third party tort-feasor for the injuries arising from a work related injury and settled for $15,150.00. The trial court awarded the compensation carrier $1,000.00 as its equitable share of the recovery. Section 440.39(3)(a), Florida Statutes (Supp....

...d collectibility. The burden of proof will be upon the employee . The trial court applied this statute and found that the employee had demonstrated he had not received full value in his third party action by virtue of his own comparative negligence. Section 440.39(3)(a), Florida Statutes (Supp.1974), makes the questions of “comparative negligence” and less than “full value” recovery factual determinations for the trial court....

...Pierce Nissan provided Donnelly with workers' compensation benefits, Donnelly and his wife filed suit against Julius Grant and Lawyers Express Trucking, Inc. ("Lawyers Express"), the third-party tortfeasors. Lawyers Express was insured by Canal Insurance Company, Inc. ("Canal Insurance"). Section 440.39(1), Florida Statutes (1997), allows injured employees to pursue tort claims against third parties arising from work-related injuries. However, pursuant to section 440.39(2), the entity that paid the workers compensation benefits has statutory subrogation rights in any third-party suit. Therefore, section 440.39(3)(a) requires the injured employee to serve a "notice of suit" upon the employer carrier....

...The record, however, indicates that Summit Claims had actual notice of the third-party suit. The tort action was settled in August 2000. Subsequently, Summit Claims filed a separate lawsuit against Lawyers Express and Canal Insurance seeking to impose a lien on the settlement proceeds pursuant to section 440.39. Lawyers Express and Canal Insurance filed a motion for summary judgment arguing that Summit Claims was barred from filing a claim of lien because it failed to file a "notice of payment" in accordance with section 440.39(3)(a). Although section 440.39(3)(a) places no time limit on the filing of the notice of lien, a reasonable interpretation of the statute is that such notice must be filed before any settlement or judgment is recovered....

...Indus. Fire & Cas. Ins. Co., 427 So.2d 792, 793 (Fla. 3d DCA 1983). Appellant relies on C & L Trucking, 546 So.2d at 1185, wherein the court imposed an "equitable lien" on settlement proceeds. We disagree with the Fifth District's opinion, because section 440.39 does not provide for equitable remedies. In this case, the insurer herein had actual knowledge of the suit against Lawyers Express; however, the insurer failed to assert its right of subrogation in accordance with section 440.39(3)(a)....

...nd medical benefits. The suit was settled for $75,000.00. On motion, however, the trial court declined to award Safeco 50% of the settlement and instead, entered an order of equitable distribution, awarding Safeco $8,000.00. The operative statute is Section 440.39(3)(a), Florida Statutes (1975)....

...In December of 2002, the guardian appointed to represent Vargas brought suit to recover damages for these injuries. The guardian also filed a workers' compensation claim against Vargas' employer. [1] The employer's insurer, Hartford, ultimately settled the workers' compensation claim and filed a section 440.39(2) subrogation lien in the personal injury action....

...tortfeasor by judgment or settlement, "the insurer shall be subrogated to the rights of the employee . . . against such third-party tortfeasor, to the extent of the amount of compensation benefits paid or to be paid [to the injured employee]. . . ." § 440.39(2), Fla....

...Ohio Casualty Group v. Parrish, 260 So.2d 550 (Fla.3d DCA 1972), cert. den. 273 So.2d 78 (Fla.1973), cert. den. 414 U.S. 828 , 94 S.Ct. 53 , 38 L.Ed.2d 62 (1973); App. dism. 291 So.2d 8 (Fla.1974). On November 5, 1975, appellant, based upon a subsequent modification of Section 440.39, Florida Statutes (Supp.1974), sought to modify the August 23, 1971 award....

...In a motion in limine, Goldman sought an order to grant a set-off for the amount of workers’ compensation payments paid to Wee-den and to deny Zurich’s ability to assert a lien against any prospective judgment or settlement. It was Goldman’s position that Zurich had the statutory authority, pursuant to section 440.39(3)(a), Florida Statutes, to assert a hen against any judgment or settlement recovered by Weeden against the third-party tortfeasor, Hunter?s Cleaning Service, but that Zurich did not have any authority to assert a lien against any judgment or settlement recovered by Weeden against her attorneys....

...case. After several days of testimony, the case between the Weedens and Goldman and his firm was settled for in excess of $300,000. *947 On October 10, 2000, approximately one month after the settlement, Zurich filed a Notice of Lien in reliance on section 440.39(3)(a), Florida Statutes (2000), upon any recovery received by Weeden in the malpractice litigation for the workers’ compensation benefits paid to her by Zurich....

...No further action was taken by Zurich until two months later, when on December 14, 2000, it filed a Petition for Equitable Distribution of the settlement proceeds paid to Weeden by the Goldman firm. The trial court denied the Petition, on the bases that: (1) section 440.39, Florida Statutes, does not authorize a workers’ compensation lien in a legal malpractice action; and (2) the Petition was untimely. We address the second basis for the trial court’s order, as we find it to be dispositive. Section 440.39, Florida Statutes (2000), creates a right of subrogation for the compensation carrier in an action against a third-party tortfeasor. See Sun Bank v. Jakubowski, 583 So.2d 782 (Fla. 5th DCA 1991). The statute authorizes subrogation of a workers’ compensation carrier to the rights of the employee to the extent of benefits recovered from the tort-feasor. Under section 440.39(2), If the injured employee or his or her dependents recovers from a third-party tortfeasor by judgment or settlement, either before or after the filing of suit, before the employee has accepted compensation or other benefits under thi...

...rvices payable under this chapter. When suit is filed against a third-party tortfeasor, notice of the employee’s suit shall be served upon the employer and the compensation carrier and all parties of record and their attorneys by the employee. See § 440.39(3)(a), Fla....

...ation and medical benefits paid or to be paid under the provisions of this law, less their pro rata share of all court costs expended by the plaintiff in the prosecution of the suit including reasonable attorney’s fees for the plaintiffs attorney. § 440.39(3)(a), Fla. Stat. (2000). Section 440.39(3)(b), Florida Statutes (2000), provides in part that where the carrier has given notice of a right of subro-gation to the third-party tortfeasor, and thereafter a settlement is made, and the parties fail to agree on the proportion to...

...This section “preserves an employer’s right to obtain equitable distribution if its provisions are satisfied.” Id. In addition to the provisions allowing the carrier to assert a lien in pending litigation 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....

...insurance carrier ... may file in the suit a notice of payment of compensation and medical benefits to the employee ... which notice shall constitute a lien upon any judgment or settlement recovered to the extent that the court may determine their pro rata share.” § 440.39(3)(a), Fla....

...a lien upon any judgment or settlement recovered,” to be given their plain and ordinary meaning, envisions that the notice be filed before there is a judgment or settlement, not after. This interpretation is consistent with the later provision, in section 440.39(b), that requires the trial court to determine the amount to be paid to the employee and carrier where the “insurance carrier has given written notice of his or her rights of subrogation to the third-party tortfeasor, and, thereafter settlement of any such claim or action at law is made.” (emphasis added) § 440.39(3)(a), Fla....

...Zurich never sought to intervene in the underlying legal malpractice case in a timely manner to preserve its interests, assuming, without deciding, that the law firm could even be considered a third-party tortfeasor so that the subrogation rights of section 440.39, Florida Statutes even come into play....

...ubrogation rights in a legal malpractice case, and ruled on the issue of the set-off with the benefit of the arguments and authorities that were first presented to it months after the settlement, in the hearing on Zurich’s petition. Thus, although section 440.39(3)(a), Florida Statutes, places no time limit on the filing of the notice of lien, a reasonable interpretation of the statute as a whole is that such notice must be filed before any settlement or judgment is recovered, not after. We affirm. DELL and KLEIN, JJ., concur. . The issue of whether a workers' compensation lien may attach to the proceeds of a legal malpractice settlement pursuant to Section 440.39, Florida Statutes, is an issue of first impression in Florida....

WIGGINTON, Judge. In this equitable distribution case brought under section 440.39(3)(a), Florida Statutes (1985), the workers’ compensation insurance carrier and the employer challenge the trial court’s order holding that the carrier may recoup the portion of its lien attaching to future medical expenses by payi...

...n 440.25(1), Florida Statutes, with respect to the employee’s entitlement to future medical benefits under the Workers’ Compensation Law. We affirm. In American States Insurance Company v. Woodard, 433 So.2d 20 (Fla. 1st DCA 1983), we noted that section 440.39(3)(a) is silent as to how pro rata distribution is to be carried out....

the third-party tortfeasor” as required by section 440.-39(3)(b), Florida Statutes. We affirm the dismissal

...-sors within a year after the accident. Thereafter, within the second year after the accident, but prior to the filing of any action against the third party tort feasors by the compensation carrier as it could have done in the second year under F.S. § 440.39(4) (a), F.S.A., the employee settled his claim against the Smiths as third party tort feasors upon payment by them of the sum of $9,305....

...n. We find the appellant’s contention to be without merit. The employee’s claim against the tort feasors having been settled where no action had been filed on the tort claim by the workmen’s compensation insurance carrier under subsection 4 of § 440.39 Fla.Stat., F.S.A., the settlement falls under the provisions of paragraph (b) of subsection 3 of § 440.39 which, with the aid of subpara-graph (a) thereof to which reference is there made, provides for the compensation carrier to receive a pro rata share of the settlement amount based on equitable distribution....

money was paid by the UM/UIM carrier. We agree. Section 440.39(3)(a), Florida Statutes (1997) states that

its carrier FEISCO) filed a lien, pursuant to section 440.39(3)(a), Fla.Stat. (1987) seeking reimbursement

...Robinson, of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee. BOYER, Acting Chief Judge. By this appeal from a final summary judgment in favor of the defendant in a tort action we are called upon to determine whether the provisions of F.S. 440.39(1) are applicable so as to allow the plaintiff in the trial court, appellant here, to maintain a common-law action despite having received and accepted Workmen's Compensation benefits from his employer for the injuries which he sustained as a result of the accident giving rise to this controversy....

...n the course of his employment and the issue of negligence is resolved in favor of the plaintiff for the purpose of defendant's motion for summary judgment, the question is whether the defendant was a "third party tortfeasor" within the meaning of F.S. 440.39(1)....

...is a "subcontractor" to whom McGiffin had "sublet" a portion of the contract work, then the statute renders all employees on the project employed by a "common employer", hence they are statutory fellow servants. If this is the case, then the defendant cannot be a "third party tortfeasor" for the purposes of F.S. 440.39(1)....

...which it was passing on to defendant, it was not a `contractor' who would become the statutory employer of defendant's employees. * * * * * * * * * "Under the facts in this case the defendant was a `third party tortfeasor,' as that term is used in F.S. 440.39, against whom the plaintiff may bring these actions....

PER CURIAM. Appellant is a workman’s compensation self-insurer; as such it occupies the position of insurance carrier in this litigation. This appeal is from an order denying equitable subrogation pursuant to F.S. § 440.39, F.S.A....

McBee Co., Fla.1955, 77 So.2d 796, construing Fla.Stat. 440.39 (1971), F.S.A., a statute which has been amended

...ehicle, contending that the vehicle was defective and that the defendants were negligent in allowing the defects to exist. The complaint included a derivative claim by Chambliss’ wife, appellee Lelia Cham-bliss, for loss of consortium. Pursuant to § 440.39(3)(a), Florida Statutes (1979), 1 the City of Tallahassee filed a notice of payment of compensation and medical benefits and claimed a lien upon any funds that appellees might recover from the alleged third-party tortfeasors....

...At the same *45 time, appellees filed a motion to determine a reasonable consortium award from the settlement funds. Appellees assert, as they did in the lower court, that the jury’s no-liability verdict meant that there was no third-party tortfeasor and, therefore, the provisions of § 440.39 were not applicable....

...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 exception for the situation where an injured employee’s damages are limited due to “questionable liability” of the alleged third-party tortfeasor....

...Mrs. Chambliss’ derivative claim and deduct that amount before the lien attaches to the remaining funds. Reversed and Remanded for further proceedings consistent with this opinion. MILLS, J., and PEARSON, TILLMAN, (Ret.) Associate Judge, concur. . Section 440.39(3)(a), Florida Statutes (1979), provides: (3)(a) In all claims or actions at law against a third-party tortfeasor, the employee, or his dependents or those entitled by law to sue in the event he is deceased, shall sue for the employee...

...t time. When the two insurance companies could not agree the liability carrier settled with Mr. Gall. After the expiration of one year from the date of the accident, the Michigan Mutual Ins. Co., the subrogated compensation carrier, filed suit under section 440.39(4), Fla.Stat., F.S.A., as it existed in 1958....

...The appeal emanated from an order by the trial court on April 16, 1958, wherein was granted the joint motion of the employee and the third party tortfeasor to strike and dismiss the appellant carrier’s motion for distribution. The rationale of the court’s determination is that the compensation carrier, under section 440.39, F.S.A., has no statutory remedy or recourse in this action, since subsection three regulating and prescribing the conditions which appertain to subrogation rights states that notice of payment of compensation and medical benefits “s...

...intent, since in “subsection 3 the Legislature omitted the word ‘settlement’ however included the same in subsection 4 and tied it together with subsection 5.” He stated further that any clarification should be legislative and not judicial. Section 440.39, under subsection one, gives the employee the right to bring suit against a third party tortfeasor and at the same time to collect compensation benefits....

...Rainey, Fla.1956, 86 So.2d 447, 448 , yet it may be mentioned that suit was there filed against the third party tortfeasor by the employee and settled. The insurance carrier was brought into the case “for the purpose of determining its 'pro rata share’ of the recovery pursuant to F.S., § 440.39(3), F.S....

...ntry of the order by the court making effective the settlement. When the statute is considered in its entirety, as applied to subrogation rights, we must conclude that the order thus entered constituted such a recovery as to be within the purview of section 440.39 requiring the trial court to hear and determine the claim interposed *52 by the carrier as provided under subsection three....

CASANUEVA, Judge. This is an appeal from the equitable distribution, pursuant to section 440.39, Florida Statutes (1997), of the proceeds from a negligence suit on which the worker’s compensation insurance carrier, the appellant, ETS of New Orleans, Inc....

...In this appeal ETS asserts that the trial court, as part of the equitable distribution calculation, overstated the amount of costs Mr. Jones was entitled to subtract from his settlement before determining the pro rata share of the award ETS would receive. The relevant statute, section 440.39(3)(a), provides, in pertinent part: Upon suit being filed, the ......

...Although the Supreme Court has found the penalty payment to be “compensation” for purposes of taxing attorney’s fees [Lockett v. Smith, 72 So.2d 817 (Fla.1954) ], the same characterization should not be applied where the *247 carrier seeks reimbursement. (3) Section 440.39, Florida Statutes (1975), permits reimbursement for medical benefits paid, not litigation expenses in the form of expert witness fees.....

...Parrish, 350 So.2d 466 (Fla.1977). Therefore, for the reasons above stated, we modify the order under review by striking from the award the amount of $1,090.18, representing the penalties and interest recovered. As modified, the order under review is affirmed. . Section 440.39(3)(a) Florida Statutes (1975)....

...The appellant settled a negligence action against the third party defendant which arose from injuries the appellant suffered in a rear-end automobile accident that occurred while the appellant was driving a school bus in the course of her employment. The appellant then moved for equita *1147 ble distribution pursuant to section 440.39, Florida Statutes (1993). The appellant contends that the trial court erred in failing to limit the lienor’s recovery to the amount of the appellant’s net tort recovery pursuant to section 440.39, Florida Statutes (1993), a point which the lienors, appellant’s employer and the employer’s servicing agent, concede....

...ien is made. We affirm the decision of the trial court upon the authority of Division of Risk Management v. McDonald, 436 So.2d 1134 (Fla. 5th DCA 1983). We recognize that it is difficult to reconcile the precise language of the statute in question, section 440.39(3)(a), Florida Statutes (1981), 1 with the provision in National Ben Franklin Insurance Co....

...in would also apply to this statute. Neither version of the statute expressly provided for pro-ration. 2 In addition, we believe the subse *547 quent action of the legislature in expressly providing for proration of fees and costs by an amendment to section 440.39(3)(a) effective June 30, 1983 is actually a clarification of legislative intent, originally properly detected in National Ben Franklin....

...Norman, 444 So.2d 1124 (Fla. 3d DCA 1984); Hewitt, Coleman and Associates v. Grattan, 432 So.2d 125 (Fla. 2d DCA 1983); Risk Management Service, Inc. v. Scott, 414 So.2d 220 (Fla. 1st DCA 1982). BARKETT, J., concurs. GLICKSTEIN, J., concurs specially with opinion. . Section 440.39(3)(a), Florida Statutes (1981), provides: In all claims or actions at law against a third-party tortfeasor, the employee, or his dependents or those entitled by law to sue in the event he is deceased, shall sue for the employee individ...

...parties to the suit or their attorneys of record by the employee. Notice of payment of compensation benefits shall be served upon the employee and upon all parties to the suit or their attorneys of record by the employer and compensation carrier. . Section 440.39(3)(a), Florida Statutes (1975), provides: In all claims or actions at law against a third party tort-feasor, the employee, or his dependents, or those entitled by law to sue in the event he is deceased, shall sue for the employee- indi...

...mmon law indemnification. A workers compensation carrier who has paid benefits to a covered employee has a lien on any recovery by the injured employee in an ordinary personal injury action against a third-party tortfeasor liable for the injury. See § 440.39(2), Fla.Stat....

...2d DCA 1965); and (2) assuming, for the sake of argument, that Continental had elected to proceed under the statute for equitable distribution, the complaint was insufficient for failing to allege that the lien was recorded as specifically required by Section 440.39(3)(a), Florida Statutes (1975)....

...4th DCA 1978), cert. denied, 374 So.2d 98 (Fla.1979); cf. Aetna Insurance Co. v. Harper, 379 So.2d 1019 (Fla. 2d DCA 1980). See Dunnell v. Malone and Hyde, Inc., 425 So.2d 646 (Fla. 3d DCA 1983). The other issues raised present no basis for reversal. Affirmed. . Section 440.39(3)(a) has since been amended to delete the recording requirement....

...pot, the manufacturer and distributor of the ladder, for his injuries. In his Complaint, Milian also claimed damages against HES for spoliation of evidence. The Complaint sets out a claim for Spoliation of Evidence and for Statutory Violations under section 440.39(7), which requires employers to aid the plaintiff in all third party actions undertaken by the plaintiff for injuries sustained while employed....

...At Milian's request, Home Emergency agreed to preserve the ladder. Milian needed it as evidence for his lawsuit against the manufacturer, Keller Ladders, Inc., and the distributor, Home Depot U.S.A., Inc. By statute, Home Emergency was obligated to cooperate with Milian on this request. See § 440.39(7), Fla....

...[1] The court expresses its appreciation to the Academy of Florida Trial Lawyers and the Florida Defense Lawyers Association for the amicus briefs they have submitted at the invitation of the court. [2] The Milian complaint included a count for common law spoliation of evidence as well as a count claiming a violation of subsection 440.39(7), Florida Statutes....

...The trial court granted summary judgment in favor of Fine Line and later granted summary judgment in favor of Labor Finders. This court reversed the final summary judgment in favor of Fine Line, holding that "a special employer using a laborer from a help supply services company has a duty under section 440.39(7), Florida Statutes, to preserve evidence for the injured laborer's claim against a third-party tortfeasor." Gayer v. Fine Line Constr. & Elec., Inc., 970 So.2d 424, 425 (Fla. 4th DCA 2007). As for Labor Finders, it was undisputed that it never obtained possession of the ladder despite multiple attempts to do so. We hold that Labor Finders had no duty under section 440.39(7) to acquire and preserve evidence that was never in its possession....

LEHAN, Judge. We affirm the trial court’s ruling that the subrogation rights provided to a workman’s compensation insurance carrier pursuant to section 440.39, Florida Statutes (1985), for workman’s compensation benefits paid to an employee do not, under the terms of the statute, arise against a recovery by the employee from a third party tortfeasor when the employee was injured by the third party tortfeasor while not in the course of his employment....

...It is true that in Castora the carrier’s subrogation rights were not allowed to be reduced by reason of an accident to the employee which was not in the course of his employment. But that case, in contrast to the case at hand and consistent with section 440.39, involved principally a carrier’s subrogation rights in a suit against a third party tortfeasor for injuries from an accident to the employee occurring in the course of his employment....

...l value of his tort claim, which the court has found to be $15 million. We conclude that it did not, and therefore affirm on this point. I The relevant statute, governing how the carrier’s recovery on a workers’ compensation lien is prorated, is section 440.39(3)(a), Florida Statutes (1981)....

third party tortfeasor was settled and the E/C’s § 440.39, Fla.Stat. lien was satisfied. The claimant then

...alue of his damages sustained because of the limit of insurance coverage available” and the court thereby extinguished the appellant’s notice of lien. We find that on the basis of the instant record and the applicable law, reversal is necessary. Section 440.39, Florida Statutes (1975) states: “(1) If an employee, subject to the provisions of the Florida Workmen’s Compensation Law, is injured or killed in the course of his employment by the negligence or wrongful act of a third party tort...

...The litigation arising out of the auto accident was prosecuted in the Minnesota Federal District Court, but before the case reached its conclusion, Schwartz settled the dispute for $21,000.00. Consolidated Mutual had filed a timely notice of claim of lien in the Minnesota action in order to insure its rights under § 440.39(2) Fla.Stat....

...ota tortfeasors. This equitable distribution is to be determined by a pro rata share of the benefits that the insurance carrier’s insured received from the litigation. The pertinent portions of the equitable distribution statute are as follows: “440.39 Compensation for injuries where third persons are liable.— (( sfc i{i >{c >fi sfc “(2) If the employee or his dependents shall accept compensation or other benefits under this law or begin proceedings, therefor, the employer or, in t...

...ompany. Appellant now contends that the Circuit Court of Dade County was without jurisdiction over the subject matter when it heard Schwartz’ petition. We cannot agree. The statutory language upon which the appellant bases his argument is found in § 440.39(3) (b), supra....

...ployees are protected by the insurance carrier. Appellee points out that had the Minnesota federal suit not been prosecuted, and Schwartz had instead settled the case without filing any law suit *716 at all, then the “trial court” referred to in § 440.39(3) (a), supra, would obviously have been the court of proper jurisdiction to determine Consolidated Mutual’s right of equitable distribution; therefore, in such case the forum would have been the proper court located in Dade County....

Brothers, 384 So.2d 1302 (Fla.4th DCA 1980); Section 440.39(3)(a), Florida Statutes (1977).

to include in the amount recoverable under section 440.39, Florida Statutes (1983), the amount paid by

Company v. Vaughn, Fla. App. 1966, 189 So.2d 536; § 440.39(3) (b), Fla.Stat, F.S.A.

...Nearly two years later General Accident filed its motion to determine its worker’s compensation lien, acknowledging that Spinos had reimbursed it *452 for part of its lien, but contesting the amount and percentage to which it was entitled. Under section 440.39, Florida Statutes, the worker’s compensation carrier is subrogated to the rights of the employee to the extent of benefits recovered from the tort-feasor. § 440.39(2), Fla.Stat. (1993). When the carrier files a notice, the notice constitutes a lien on the judgment or settlement recovery, to the extent the court determines the carrier’s pro rata share. § 440.39(3)(a), Fla.Stat....

an employee covered by the carrier, pursuant to § 440.39(4) (a), Fla.Stat., F.S.A. Cf. Ch. 70-148, § 6

PER CURIAM. This is an appeal by the employer’s Workmen’s Compensation carrier from an order denying it any award in a proceeding for equitable distribution, pursuant to Section 440.39, Florida Statutes (1975)....

...v. Home Emergency Services, Inc., 812 So.2d 433 , (Fla. 3d DCA 2001)(en banc). Following the destruction of the ladder, Albert and Rose Milian filed suit against HES asserting, in part, a claim for spoliation of evidence and a claim for violation of section 440.39(7), Florida Statutes (1995), by discarding or destroying the ladder....

PER CURIAM. The sole question on this appeal is whether a compensation carrier has the exclusive right, in the second year after the accrual of a cause of action, to institute an action against a third party tort feasor pursuant to § 440.39, Fla.Stat., F.S.A....

order for equitable distribution pursuant to section 440.-39(3)(a), Florida Statutes (1975).1 We reverse

motion for equitable distribution pursuant to Section 440.39(3)(a), Florida Statutes (1977) then in existence

expressly waives the right to a lien pursuant to § 440.39. The claimant’s injuries in the instant industrial

ANSTEAD, Judge. At issue is whether the lien rights of a workmen’s compensation insurer under the provisions of Section 440.39(3)(a), Florida Statutes (1975) include future medical benefits payable to the injured employee. The trial court considered such benefits in determining the amount due the insurer out of *154 the recovery made by the injured worker from a third-party tortfeasor. We believe the plain language of Section 440.39(3)(a) supports the trial court’s conclusion....

...] (emphasis added) We believe “future benefits to be paid” includes future medical benefits. The appellant cites two cases which he contends require a different result. The first, Baughman v. Aetna Casualty & Surety Co., 78 So.2d 694 (Fla.1955), held that future medical benefits could not be recovered under Section 440.39(3), the predecessor of (3)(a), because the unambiguous language of that section only provided for recovery of benefits already paid....

...d. We don’t believe Baughman is on point. However, the other case cited, General Fire & Casualty Co. v. First National Bank of Tampa, 306 So.2d 193 (Fla. 2d DCA 1975), does appear to hold that the statute in question there, the 1973 version of Section 440.39(3)(a), did not allow for recovery of future medical benefits even though future compensation benefits could be recovered....

...That case relied on Baughman, supra, and a reading of all of the provisions of Chapter 440. The only material difference we can observe in the 1977 version of the statute as compared to the 1973 version is the omission of the word “compensation” from the second sentence of Section 440.39(3)(a) so that instead of providing for the recovery of future “compensation” benefits to be paid, the section now provides for the recovery of future benefits to be paid....

...t can be predicated on the Baughman case, supra. It may be that the word “compensation” was deemed to limit the recovery of future benefits only to wage loss benefits. If so, that restriction no longer applies. We believe that a plain reading of Section 440.39(3)(a) indicates that the carrier was entitled to recovery for both future wage loss benefits and future medical benefits....

...e was working when he was injured. In the lawsuit against Crane Carrier, the City of Lakeland and the Claims Center, as employer and workers’ compensation carrier, filed a notice of lien for payment of compensation and medical benefits pursuant to section 440.39(3)(a), Florida Statutes (2002)....

...ure medical benefits to its lien. The plaintiff has conceded that the employer/carrier’s position has merit, and we agree. In City of Lakeland v. Morris, 627 So.2d 572, 573 (Fla. 2d DCA 1993), this court held, en banc, that the applicable statute, section 440.39(3)(a), “does not allow the trial court the discretion to exclude medical benefits and limit recovery of the workers’ compensation lien to only future indemnity benefits.” In so holding we agreed with the Fifth District’s decision in *785 Tarmac of Florida/Liberty Mutual Insurance Co....

SCHWARTZ, Chief Judge. The order below assessing a workers’ compensation lien filed under section 440.39, Florida Statutes (1985), against the settlement proceeds of a compensable medical malpractice claim is directly contrary to section 768.50, Florida Statutes (1985), as interpreted in American Motorist Insurance Co....

...Appellants Adjustco, Inc. and Morris Timber Company appeal an order of the circuit court which found that they were entitled to a 20% workers’ compensation lien against appellee’s net recovery from a third-party tortfeasor. Appellants contend that section 440.39(3)(a), Florida Statutes (1979), entitles them to a 100% lien....

...1 He then sued Louisville and Nashville Railroad Company as a third-party tortfeasor, based upon the November 21, 1980 accident, settling that case prior to trial for $60,000. Morris Timber Company, appel-lee’s employer, and Risk Management Services, Inc. then filed (pursuant to section 440.39, Florida Statutes (1979)) a notice of lien for workers’ compensation and medical benefits paid appellee, both past and future....

...had paid appellee, up to the maximum of appellee’s net recovery. 3 The trial court denied appellants’ request for 100% reimbursement, based upon the court’s finding that appellee was 80% comparatively negligent in the third-party action. Under section 440.39(3)(a), Florida Statutes (1979), an employer or carrier who asserts a workers’ compensation lien is entitled to recover 100% of past and future benefits, paid or to be paid, from an employee who recovers on a third-party action, unles...

...BOOTH, C.J., and WENTWORTH, J., concur. . Although the record on appeal does not make this clear, Adjustco, Inc. evidently became the insurer at risk subsequent to the filing of the workers' compensation lien at issue in this case. . See footnote one, supra. .Under section 440.39(3)(a), Florida Statutes (1979), net recovery is defined as gross recovery less attorney’s fees and costs expended in prosecuting the third-party suit. . Section 440.39(3)(a) provides in pertinent part: ......

...The first point on appeal is whether the trial court erred in awarding Zurich fifty-seven percent instead of one hundred percent of the compensation and medical benefits paid when it concluded that Martin had received full value in his tort settlement. The trial court found and the parties agree that section 440.39(3)(a) and (b), Florida Statutes (1978), govern this case....

...in. See State, Dept. of Health v. Culmer, 402 So.2d 1273 (Fla. 3d DCA 1981). In Culmer , the Third District, finding that the employee failed to demonstrate that she did not receive the full value of her damages in a settlement, concluded that under section 440.39(3)(a), it was error not to provide full recovery to the employer for workers’ compensation benefits paid or payable....

...The court also found that the evidence established that Zurich has paid no compensation benefits to Martin since November 7, 1981, and no medical benefits since August 12,1982. However, the court did not find that there would be no further payments made by Zurich to Martin. Section 440.39(3)(a) clearly contemplates a lien on future benefits by providing: “The employer or carrier shall recover ......

...to require the appellees to escrow a portion of their settlement money in order to insure payment of the lien against future compensation benefits. We affirm. The trial court’s determination of the amount of the lien is supported by the evidence. Section 440.39(3)(a), Florida Statutes, is silent as to how pro rata distribution is to be carried out....

...Commercial Union Insurance Company (CUI) paid workers’ compensation benefits to Jamie Edward Fallen and Joseph Wenzel (Employees). Employees successfully pursued claims for the related injuries against responsible third parties and obtained judgments against which CUI filed subrogation liens pursuant to section 440.39, Florida Statutes (1991)....

...l court to include post-judgment interest (on a judgment against third-party tortfeasors) in an award of a pro rata share of the proceeds of the judgment for compensation and medical benefits paid by an employer or an employer’s insurance carrier. Section 440.39(3)(a) provides: In all claims or actions at law against a third-party tortfeasor, the employee, or his dependents or those entitled by law to sue in the event he is deceased, shall sue for the employee individually and for the use and...

...Deuchler Assoc., Inc., 96 Ill.App.3d 99 , 51 Ill.Dec. 566 , 420 N.E.2d 1124 (2d Dist.1981). . A money judgment automatically incurs interest pursuant to section 55.03, Florida Statutes (1991). It appears to us that the use of the word "judgment" in section 440.39(3)(a) includes all of the rights created by this judicial order and there are no words limiting the lien only to the principal portion of the judgment.

...he does here, that the relationship mattered not and the immunities enjoyed by the employer are not applicable to Bryan & Fletcher in either event. We agree. Compensation claimants may pursue common law remedies against third party tort-feasors. Section 440.39 (Fla.Stat.1971)....

...Specifically, the plaintiff argues that “part of the purpose of the workers’ compensation statute is to permit negligence claims against a third-party tortfeasor—in this case the customers of AlliedBarton.” In making this argument, the plaintiff references section 440.39, Florida Statutes (2017), which provides that an employee injured in the course of his or her employment by the negligent actions of a third-party tortfeasor “may accept compensation benefits under the provisions of this law, and at the same time such injured employee . . . may pursue his or her remedy by action at law or otherwise against such third-party tortfeasor.” § 440.39, Fla....

...mandatory option on the part of the employee to pursue an action at law. Agile Assurance Grp. Ltd. v. Palmer, 147 So. 3d 1017, 1018 (Fla. 2d DCA 2014) (“Generally, use of the word may deems relevant language permissive.”). Here, the plaintiff contracted away his right under section 440.39 to assert a claim against a third-party tortfeasor....

...iver and held that it violated New Jersey public policy. See Vitale v. Schering-Plough Corp., 174 A.3d 973 (N.J. 2017). In addition to finding the waiver invalid on the grounds that it violated N.J.S.A. 34:15-40 (Section 40)—a provision resembling section 440.39, Florida Statutes—the court found that it also violated N.J.S.A....

...e., (1) that the amount of $1,500 awarded as pro rata recovery in an equitable distribution proceedings under § 440.-39, Fla.Stat., F.S.A., was an abuse of discretion by. the trial judge; and (2) that the trial judge failed to give effect to the provisions of § 440.39(3), Fla.Stat., F.S.A., as amended, which became effective July 1, 1959....

...As to the first contention, the appellant has failed to demonstrate that the trial judge abused his discretion in awarding the sum of $1,500, especially when it is considered that no particular yardstick or formula for computation was prescribed in § 440.39, supra, but left it in the discretion of the court to determine....

...Workmen’s compensation is not payable because of negligence of the employer but is payable under the terms of the statute. The insurance carrier and employer had full knowledge of the suit being prosecuted against the third person but no steps were taken by the insurance carrier or the employer as provided for by Section 440.39(3), F.S., F.S.A....

...ed her claim for compensation under the Workmen’s Compensation Law. There appears to be no contention that the widow was entitled to full compensation for the death of her husband under Section 440.16, F.S., F.S.A., unless the same was modified by Section 440.39....

...do not have the right of subrogation against the party causing such injury. In this case without the Statute, the compensation insurer would have no right of subrogation.’ True, the court there decided a case arising after the amendment of 1951 to Section 440.39, supra, but the principle is the same and would be equally appropriate here.” The right of the widow to receive compensation under Section 440.16, F.S., F.S.A., was not destroyed because the death of her husband was due to the negligence of the third party while the husband was driving a truck in the scope of his employment and because she recovered from such third party as authorized by Section 440.39(3) F.S., F.S.A....

BERANEK, Judge. This is an appeal by a workmen’s compensation insurance carrier, Continental Insurance Company, from an order entered by the Circuit Court on equitable distribution of a personal injury settlement as provided by Section 440.39(3)(a), Florida Statutes (1975)....

...His widow filed an action against the third party tort feasor whose negligence allegedly caused Porch’s death. Recovery was had by way of a settlement in the case. No judgment for the settlement amount was entered. The insurance carrier’s motion in the suit for pro rata distribution under § 440.39(3), Fla.Stat., F.S.A., was denied, on April 8, 1959, and that action of the court is the subject of the appeal. The subrogation contended for by the carrier is statutory. The right must be found in the statute, which is § 440.39, Fla....

...Co. of New York v. Bedingfield, Fla.1952, 60 So.2d 489, 495 ; Brinson v. Southeastern Utilities Service Co., Fla.1954, 72 So.2d 37, 38 ; Cushman Baking Co. v. Hoberman, Fla.1954, 74 So.2d 69, 71 . The determinative question on this appeal is whether § 440.39(3) limits subrogation of the carrier to instances where the tort action filed by the injured employee or his dependents against the third party tort feasor proceeds through trial to a judgment, or whether such subrogation is available when...

...inty in that respect in the statute as *828 originally worded and expressly made provision for such subrogation in the event of settlements effected before or after the filing of such suits. Aside from that amendment, we are of the opinion that when § 440.39 is read as a whole, and its objects and purposes are considered and given effect, it must be construed to have contemplated and provided for subrogation in suits brought by the injured party or his dependents against a third party tort feas...

...1956, 86 So.2d 447, 448 , in which an action brought by the injured employee against-the third party tort feasor was settled for $7,500, and, as stated in the opinion in that case, the carrier was “brought into the case for the purpose of determining its ‘pro rata share’ of the recovery pursuant to F.S. § 440.39(3), F.S.A., which' provides for a lien in favor of the employer or compensation carrier for such share ‘based upon such equitable distribution of the amount recovered as the court may determine.’ ” In the Rainey case the carrier, seek...

...Regina Akins’ Motion for Equitable Apportionment, which, inter alia, denied Captain D’s, LLC’s claim for full reimbursement of the workers’ compensation benefits it had paid to, or on behalf of, Regina Akins. The trial court, governed by section 440.39(3), Florida Statutes (2023), found that Akins had not received full value for her injuries in a settlement with a third party and reduced Captain D’s, LLC’s workers’ compensation lien accordingly.1 See Luscomb v....

...Although expert testimony is not required, the employee does have the burden of providing competent evidence that demonstrates to the court that she did not recover the full value of her damages. Am. States Ins. Co. v. Rozier, 450 So. 2d 547, 548 (Fla. 4th DCA 1984); § 440.39(3)(a), Fla....

...He died five days later and Pamela Coon, his widow, became personal representative of his estate. The Coon estate prosecuted an action against some third-party tort-feasors which the estate contended were responsible for Coon’s injury and resulting death. Pursuant to section 440.39(3)(a), Florida Statutes (1981), Continental filed a claim of lien against the proceeds received by the Coon estate as a result of its litigation....

...ion for the attorneys’ fees and for costs incurred by the Coon estate in its action against the third-party tort-feasors. Consequently, Continental was allowed a net recovery of $30,445.49. This appeal ensued. Continental correctly points out that section 440.39(3)(a), as it existed when Coon was injured in 1981, authorized a workers’ compensation carrier to recover 100% of the total benefits it paid without any deduction for attorneys’ fees and costs incurred in an action against third-party tort-fea-sors....

...We rejected this argument in C & T Erectors, Inc., and we decline the invitation to revisit our holding in that case. We noted in C & T Erectors, Inc., that the conflict between our court and the Fourth District in the decisions on this point has been resolved by the 1983 amendment to section 440.39(3)(a)....

...The 1983 statute provides that attorneys’ fees and costs expended in third-party tort actions are to be prorated and the workers’ compensation carrier’s lien reduced accordingly. C & T Erectors, Inc., 481 So.2d at 501 . Of course, we are bound to adhere to the meaning of section 440.39(3)(a) as it existed when Mr....

estate would not be immune from liability. See § 440.39(1) Fla. Stat. (1991). Haynes argues that Andrews

...1 Meanwhile, Tiznado filed the instant negligence lawsuit against the third-party tortfeasor. Insurer filed a notice of lien in that lawsuit, asserting a lien for the amount of workers’ compensation benefits paid or to be paid to Tiznado against the proceeds that she might recover from the third-party tortfeasor. See § 440.39, Fla....

...2 When Tiznado settled the *1269 lawsuit with the third-party tortfeasor she wanted to file a notice of dismissal with prejudice, but could not do so because of the insurer’s notice of lien. Therefore, Tiznado filed a motion to strike the lien, arguing that section 440.39 of the Florida Statutes (1997) did not authorize the imposition of a lien because the insurer had denied Tiznado’s claim and had not paid her any benefits since the accident occurred....

...Thereafter, the insurer filed an amended notice of appeal challenging this order. The insurer contends that the trial court erred by setting the lien value at zero dollars because the court failed to determine the ratio of Tiznado’s net tort recovery to the full value of her claim as required by section 440.39 of the Florida Statutes, and the ruling defeats the public purpose of the statute to prevent a claimant from receiving a double recovery from the tortfeasor and the insurer for the same accident. We agree. Section 440.39(3)(a) of the Florida Statutes (1997) provides that an insurer may file a notice of payment of compensation and medical benefits which “shall constitute a lien upon any judgment or settlement recovered to the extent that the court may...

...the employer or carrier *1270 shall recover from the judgment or settlement [minus certain deductions] ..., 100 percent of what it has paid and future benefits to be paid, except, if the employee or dependent can demonstrate to the court that he or she did not recover the full value of damages sustained.” § 440.39(3)(a), Fla....

...third-party action. Also, like in Faulk , at the time of appeal, the insurer had not yet paid any benefits to Tiznado. Based on these similar facts, the Faulk court held: Absent a stipulation both as to entitlement to an offset and as to its amount, section 440.39, Florida Statutes (1991), contemplates a judicial determination of the net amount of any recovery against a third-party tortfeasor and then of the ratio of the net recovery to the amount of damages a workers’ compensation claimant actually suffered, before a judge of compensation claims enters an order authorizing an offset. Id. at 323 (citations omitted). Under section 440.39, once the insurer filed its notice of lien it was entitled to obtain a judicial determination of the net amount of Tiznado’s recovery against the third-party tortfeasor and the ratio of the net recovery (i.e., total settlement minus costs and attorneys’ fees) to the amount of damages she has actually suffered....

...ORFINGER, R.B., J., concurs. GRIFFIN, J., dissents, with opinion. . The First District recently affirmed the trial court's order finding in favor of Tiznado as to all issues. Orlando Regional Healthcare System v. Tiznado, 787 So.2d 977 (Fla. 1st DCA 2001). . Section 440.39(2) of the Florida Statutes (1997) states, in pertinent part, "If the injured employee or his or her dependents recovers from a third-party tortfeasor by judgment or settlement, either before or after the filing of suit, before the empl...

...��Equitable Distribution” in a successful action on behalf of an injured employee against a third-party tort-feasor. It complains that its pro rata share of the amount recovered was too low for the reason that the trial court erroneously construed § 440.39(3)(a), F.S.1973, as limiting a carrier’s pro rata share to past and future compensation payable by the carrier but to include only past medical payments made. We cannot agree that the trial court erred on the point. We think a complete reading of § 440.39, supra, considered in pari materia with the entire Ch....

Thereafter plaintiff filed its lien pursuant to § 440.39, Florida Statutes, 1955, F.S.A., in certain suits

...tion subrogation claim. We affirm the trial court’s equitable distribution in all respects. However, as the trial court failed to provide the workers’ compensation lienor with offsets for future benefits to be paid to the employee as required by section 440.39(3)(a), Florida Statutes (1983), and Aetna Ins....

...(3rd D.C.A., Fla. 1971); Bituminous Cas. Corp. v. Florida Power & Light Co., 190 So.2d 426 (4th D.C.A., Fla. 1966), and Dickerson v. Orange State Oil Co., 123 So.2d 562 (2nd D.C.A.Fla. 1960). The issue in conflict is whether or not under Fla. Stat. § 440.39, F.S.A., settlement without notice by an employee, injured by a third party tort feasor, bars a suit in the second year by an employer, [1] and limits the recovery of the employer to an equitable distribution of the settlement....

...As part of the settlement transaction, Gutierrez accepted responsibility for indemnification of Maryland's compensation benefits claim. Maryland received no notice of the settlement. On March 17, 1970, it filed a second year action against Smith and her carrier under Fla. Stat. § 440.39(4)(a), F.S.A., not on the tort claim, but instead solely for recovery of its compensation liability....

...ord with the settlement agreement; (2) the indemnification was limited to a pro rata share of the settlement based on an equitable distribution. In essence, the trial court held that Maryland was not entitled to a full reimbursement under Fla. Stat. § 440.39(4)(a), F.S.A., because a settlement had been reached prior to the filing of suit by Maryland, even though Maryland was not so informed....

...On Maryland's appeal, the District Court affirmed, holding in part: "The employee's claim against the tortfeasors having been settled where no action had been filed on the tort claim by the workmen's compensation insurance carrier under subsection 4 of § 440.39 Fla. Stat., F.S.A., the settlement falls under the provisions of paragraph (b) of subsection 3 of § 440.39 which, with the aid of subparagraph (a) thereof to which reference is there made, provides for the compensation carrier to receive a pro rata share of the settlement amount based on equitable distribution....

...1966, 189 So.2d 492." Although a divergent view is expressed in Bituminous and Dickerson, supra , we agree with the holding of the District Court. The dissimilar interpretations offered by cases involving settlement without notice can be directly assigned to the inartful draftsmanship exhibited in Fla. Stat. § 440.39, F.S.A....

...one giving an advantage to the employee. An examination of the revision of the section will show this to be an objective perception, although it is clear that the Legislature is attempting to achieve a balance of the respective interests. Fla. Stat. § 440.39, F.S.A., now allows the employee to file or settle in the first year under subsection (3)(a); in this event, the employer is entitled to an equitable distribution....

...v. McAdams, 139 So.2d 433 (3rd D.C.A.Fla. 1962); Zurich Ins. Co. v. Renton, 189 So.2d 492 (2nd D.C.A. Fla. 1966). If the employer fails to act in the second year, subsection (4)(b) provides that equitable distribution shall again apply. Fla. Stat. § 440.39, F.S.A., provides in (3)(a) that an employer "may file notice of payment of compensation," and also that notice of suit is to be filed, but it is silent as to notice of settlement....

...The District Court of Appeal affirmed, giving as its reason the following: "The employee's claim against the tortfeasors having been settled where no action had been filed on the tort claim by the workmen's compensation insurance carrier under subsection 4 of § 440.39, Fla. Stat., F.S.A., the settlement falls under the provisions of paragraph (b) of subsection 3 of § 440.39 which, with the aid of subparagraph (a) thereof to which reference is there made, provides for the compensation carrier to receive a pro rata share of the settlement amount based on equitable distribution....

...The trial court properly interpreted the statute in that respect, and the ruling thereon was eminently correct. See Zurich Insurance Company v. Renton, Fla.App. 1966, 189 So.2d 492." There is conflict due to the divergence of District Court decisions' relative application and interpretation of F.S. Section 440.39, F.S.A....

...Florida Power & Light Co., Fla.App., 190 So.2d 426; Cook Motor Company v. Vaughn, Fla.App., 189 So.2d 536; Dickerson v. Orange State Oil Company, Fla.App., 123 So.2d 562, and General Guaranty Insurance Company v. Moore, Fla.App., 143 So.2d 541. F.S., Section 440.39, F.S.A., provides that employer or his insurer "shall be subrogated to the rights of the employee .....

...rt decisions. The amount of $840 appears unrealistic on its face where approximately $4300 had been paid as compensation benefits and $9,305 was recovered by employee in a settlement made on behalf of third party tort-feasors. All of the language of Section 440.39 must be read together for a correct decision in this controversy....

...share of all court costs expended by the plaintiff, including reasonable attorney's fees for plaintiff's attorney. The remainder of the moneys recovered, if any, shall be paid to the employee or his dependents. It appears to me that the language in Section 440.39(3)(a) in providing that written notice of compensation benefits paid or payable shall constitute "a lien upon any judgment recovered to the extent that the court may determine to be their pro rata share for compensation benefits paid o...

...s paid or to be paid", less proration of court costs and reasonable attorney's fees, if any. I see no basis for making any distinction as to the proration whether the recovery results pursuant to subsection (3)(a), or (3)(b), or (4)(a), or (4)(b) of Section 440.39, provided, always, proper and timely written notice of compensation benefits paid or to be paid had been given by employer or its insurer to the tort-feasor....

...ettlement, no rights therein accrue to employer-carrier. Even though it is not agreed to by a majority of the Court that an employer's subrogation right shall be "to the extent of the compensation paid," as indicated in the foregoing construction of Section 440.39, it would appear this case involves a Section 440.39(4)(a) and (5) situation....

...Subsection (4)(a) expressly provides employer-carrier shall be subrogated to and entitled to retain from any "settlement made with such third party" the amounts paid as compensation subject to proration of costs and attorney's fees. To sum up, it would appear that, F.S., Section 440.39, F.S.A., properly construed, operates as follows: 1....

ROBERT P. SMITH, Jr., Judge. At issue on USF&G’s appeal is whether Section 440.39(3)(a), Florida Statutes (1977), since amended, Chapter 79-40, Section 30, Florida Laws, required that the carrier’s notice of compensation and medical benefits paid be recorded in advance of the judgment, as well as previously filed...

...ty tortfeasor, in order to constitute a lien for equitable distribution of benefits paid. The circuit court held that USF&G’s notice was timely filed, but not timely recorded before entry of judgment, and so denied USF&G’s claim of lien. Section 440.39(3)(a) provided in relevant part: Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which s...

determining the amount of its lien pursuant to Section 440.39, Florida Statutes (1979), and in failing to

...Lee was injured in the accident. At the time, Liberty Mutual was the workers’ compensation liability carrier for Lee’s employer, and it began paying benefits both to Lee and on his behalf. Lee eventually sued the elevator operator, and Liberty Mutual filed a lien on the case, under section 440.39(3)(a), Florida Statutes....

...After that case settled, 1 Liberty Mutual sought its pro rata share of the settlement amount for the benefits it paid. But by that time, the lien had increased substantially, and a dispute arose as to the amount Liberty Mutual was owed. That amount is determined by a specific formula set forth in section 440.39(3)(a). Liberty Mutual filed a motion for equitable distribution in the trial court to resolve the dispute....

...ue of damages 1 The terms of the settlement agreement are confidential. 2 sustained” by Lee, as this number must be plugged into the statutory formula to calculate the lien amount. See § 440.39(3)(a), Fla....

...3d 313, 317 (Fla. 2022) (“Our standard of review is de novo for questions of statutory interpretation . . . .” (citing Lopez v. Hall, 233 So. 3d 451, 453 (Fla. 2018))). On appeal, Liberty Mutual argues the trial court’s order violates section 440.39(3)(a) because the statute requires Liberty Mutual’s pro rata share to be determined based on the full amount of “benefits paid or to be paid.” It argues Lee’s suggestion that the date of settlement should be the valuation date finds no support in the statute....

...4  “The ‘plain meaning of the statute is always the starting point in statutory interpretation.’” Alachua Cnty. v. Watson, 333 So. 3d 162, 169 (Fla. 2022) (quoting GTC, Inc. v. Edgar, 967 So. 2d 781, 785 (Fla. 2007)). While section 440.39(3)(a) is lengthy and requires us to tease out a statutory formula, it is nonetheless clear and unambiguous, and we simply apply it as written. Broadly speaking, section 440.39(3)(a) entitles a workers’ compensation carrier “to a lien on third-party settlement proceeds for both past workers’ compensation benefits paid and those to be paid in the future.” Volk v. Gallopo, 585 So. 2d 1163, 1164 (Fla. 4th DCA 1991) (citation omitted). Under the statute, that lien is for “100 percent of what [the carrier] has paid and future benefits to be paid,” § 440.39(3)(a), but the statute “creates an equitable distribution formula to be applied when,” as in this case, the employee can demonstrate to the court that he did not recover the full value of damages sustained....

...incurred by the employee . . . in that suit have been deducted, a percentage of what it has paid and future benefits to be paid equal to the percentage that the employee’s net recovery is of the full value of the employee’s damages . . . .” § 440.39(3)(a), Fla....

...3 The 3 The relevant portion of the statute provides: 5 statute therefore requires the total amount of benefits paid by the carrier to be factored into the formula, in order to determine the carrier’s lien amount. Although section 440.39(3)(a) does not identify a valuation date for determining the amount of benefits paid—and we will not read such a date into the statute—section 440.39(3)(a) is clear that Liberty Mutual is to be reimbursed its pro rata share based on all benefits paid....

...employee or dependent in that suit have been deducted, a percentage of what it has paid and future benefits to be paid equal to the percentage that the employee’s net recovery is of the full value of the employee’s damages . . . . § 440.39(3)(a), Fla....

...of the settlement and the date of the equitable distribution resulted in the exclusion of over $300,000 from the statutory formula. Nothing in the statute supports that exclusion. In fact, the exclusion of those benefits contravenes the express directive of section 440.39(3)(a)—that the carrier shall recover a percentage of what it has paid. We find the trial court erred in calculating the statutory formula using only a portion of the benefits paid. Moreover, we agree with Liberty Mutual that section 440.39(3)(a) precludes double recovery by injured employees who have recovered statutory benefits under the workers’ compensation law but also have claims against responsible parties other than the employer....

...totally permanently disabled. Petitioner provided medical benefits under the Act and began compensation payments initially without an award, and, upon a recovery by claimant in a common-law action against the third-party tort-feasor as authorized by section 440.39(1) of the Act, the carrier filed in that action a claim for adjudication of its subrogation rights under paragraphs (2) and (3) of section 440.39....

...In the proceeding the carrier contended that the third-party suit and settlement had terminated its liability under the Act; and from adverse rulings it proceeds in this Court solely upon the theory “that the rights of the petitioner have been determined by and under a law (F.S.A. § 440.39) which is unconstitutional and void and that the order of the full commission awarding respondent additional compensation and medical benefits is for that reason void.” This contention would appear to have been fully and correctly dispose...

...of by the order of the deputy commissioner awarding further compensation herein: “Sec. 440.01 up to Sec. 440.38 [give] the claimant a set of benefits under the Workmen’s Compensation Law, strictly within the jurisdiction of the Commission. Sec. 440.39 allows an additional set of benefits subject to adjustment by the Circuit Judge, by way of a common law action against a third party. * * * The problem confronting the Circuit Judge is: What shall be done with the corpus of the recovery in the common law suit? The subject of compensation benefits comes into the picture in Sec. 440.39 only insofar as it affects the judgment of the Circuit Judge in dealing with the common law recovery. * * * there is no confusion as to the relative jurisdictions of the Commission and the Circuit Judge. * * * The problems of Sec. 440.39 are not the Commission’s....

...They belong to the Circuit Judge, to be resolved by the ingenuity of the Court or by amendment by the Legislature.” The carrier, petitioner in this Court, fully recognizes that it is not entitled in the present proceeding to raise any question as to the sufficiency of the subro-gation award to it under section 440.39, since that question was duly adjudicated in the forum and manner provided by the statute and was affirmed upon appeal....

...The precise language of the statute is that when a carrier has paid compensation benefits to an employee, then to that extent it “shall be subrogated to the rights of the employee * * * against such third party tort-feasor * * * as provided by subsection (3) of this section ” Section 440.39(2) (Emphasis supplied.) Subsection (3) defines the limited nature of this right of subrogation, confining it to the right to a lien on the judgment “to the extent that the court may determine to be their pro rata share for compensati...

...t only “All amounts paid as compensation and medical benefits,” but, in addition, “the present value of all future compensation benefits payable * * * to be retained as a trust fund from which future payments of compensation are to be made.” Section 440.39(4). (Emphasis supplied.) But whether or not the Act contemplates the consideration of future compensation in the determination of a sub-rogation award to a carrier under Section 440.39(3), and whatever the extent of petitioner’s rights thereunder in this case, they were fully and completely adjudicated in the earlier proceeding, and cannot be litigated anew, on any issue, constitutional or otherwise, in the contest of a claim before the commission for compensation accruing subsequently....

...ee, notwithstanding the fact that it may have notified the third party tort-feasor 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)....

SCHWARTZ, Judge. The plaintiff did not, as Section 440-39(3)(a), Florida Statutes (1975) requires, sustain

lien for future compensation benefits pursuant to § 440.39(3), Fla.Stat., F.S.A., effective July 1, 1959

...Appellant, Aetna Insurance Company, paid workers’ compensation benefits to an injured employee who subsequently recovered damages for her injuries in a suit against third-party tortfeasors. The trial court dismissed a motion for equitable distribution filed under Section 440.39(3), Florida Statutes (1975). 1 Aetna appeals. *1020 The issue we address is whether Aetna’s failure to file and record a notice of lien in the employee’s third-party suit deprived it of its right under Section 440.39(3) to obtain an equitable distribution of the damages recovered by the employee in her third-party action....

...Harter was injured in an automobile collision while she was driving a car within the scope of her employment. Harter began receiving workers’ compensation benefits from Aet-na, her employer’s carrier. On September 19, 1977, Aetna furnished the required statutory notice of its subrogation rights. § 440.39(3)(b), Fla.Stat....

...to her and would be required to make further payments, it was premature for the court to make a determination on the motion. After several continuances, the court, at Har-ter’s request, dismissed the motion. Aetna contends the court erred because Section 440.39(3)(b) entitles it to have its subrogation rights determined since it furnished written notice of its rights of subro-gation to the third-party tortfeasors. Har-ter seeks to sustain the trial court’s order on the basis that Aetna did not file and record a notice of payment of compensation in the tort suit as it contends Section 440.-39(3)(a) requires. Section 440.39(3)(a) allows an employee who receives compensation benefits the exclusive right to bring a third-party action during the first year after an accident occurs. It also provides that the carrier may file and record a notice of payment in any third-party suit. If it does, the notice constitutes a lien on any payments made on behalf of the third-party tortfeasor. Section 440.39(3)(b) covers the situation where a settlement occurs either before or after suit by an injured employee....

...Yet, *1021 it is entitled to have its proportionate recovery determined under (3)(a). Harter seeks to sustain the trial court’s holding on the authority of Alfar Creamery Co. v. Williams, 366 So.2d 458 (Fla. 4th DCA 1979). There the Fourth District Court of Appeal held that a carrier which proceeded under Section 440.39(3)(a) was required to comply with the requirement of filing and recording its notice to be entitled to subrogation under (3)(a)....

...and thereafter Harter and the tortfeasors settled the tort suit. Since Aetna and Har-ter failed to agree on the proportion to be paid to each, the trial court should have determined the amount to be paid to each in accordance with Subsection (3)(a). § 440.39(b), Fla.Stat. (1975). Accordingly, we reverse the order of the trial court and remand for further proceedings consistent with this opinion. GRIMES, C. J., and HOBSON, J., concur. . Section 440.39(3)(a) and (b), Florida Statutes (1975) provides: (a) In all claims or actions at law against a third party tort-feasor, the employee, or his .dependents, or those entitled by law to sue in the event he is deceased, shall sue for the em...

...e of action arose shall determine the amount to be paid to each by such third party tort-fea-sor in accordance with the provisions of paragraph (a) above. . Harter failed to notify Aetna of her suit against the third-party tortfeasors as required by Section 440.39(3)(a), Florida Statutes (1975)....

...Defendant company then *509 transported the limerock in its own trucks to the job site. Plaintiff contends that defendant company was not a sub-contractor as contemplated by §§ 440.10 and 440.11, Fla.Stats., F.S.A., but a third party tort-feasor under the provisions of § 440.39, Fla.Stats., F.S.A. Section 440.39 provides in part that an employee injured in an industrial accident by the negligence or wrongful act of a third party may accept compensation benefits and still pursue his remedy by action at law against the third party. We do not agree that defendant company was a third party tort-feasor such as contemplated under § 440.39, but rather came within the provisions of § 440.10(1), Fla....

considerable detail because of the provisions of Section 440.39, Florida Statutes, 1941, and F.S.A. (Sec. 39

...We reverse and remand the cause to the trial court with directions to give the carrier a 16.76% pro rata share of the $62,764 net recovery from the settlement. We reach this result based on the following briefly stated legal analysis. First, the 1981 version of Section 440.39(3)(a), Florida Statutes governs this case as to the pro rata distribution rights of the workers’ compensation carrier herein....

...100 percent of what it has paid and future benefits to be paid, unless the employee or dependent can demonstrate to the court that he did not recover the *1085 full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collecti-bility.” § 440.39(3)(a), Fla.Stat....

...In our view, it was the trial court’s finding of comparative negligence which was conclusive in this case, not the subsequent jury verdict against another tortfeasor. The trial court nonetheless correctly decided to award the carrier herein a pro rata share of the net proceeds of the said settlement at less than 100%, § 440.39(3)(a), Fla.Stat....

...Barnett Bank of Tallafiassee, 377 So.2d 1150 (Fla.1979); Carpenter v. Metropolitan Dade County, 472 So.2d 795 (Fla. 3d DCA 1985). Fourth, the trial court committed two errors in calculating the pro rata share percentage due to the carrier herein under Section 440.39(3)(a), Florida Statutes (1981)....

...of the claim, although there was uncontradicted evidence that the value of the punitive damages was $200,000. This constituted error because punitive damages, no less than compensatory damages, are part of “the full value of damages sustained,” § 440.39(3)(a), Fla.Stat....

...C & T Erectors, Inc., and Southeastern Fire Insurance Company, an employer and its workers’ compensation carrier, respectively, challenge an equitable distribution order entered by the lower court pursuant to the Workers’ Compensation Law, Chapter 440, Florida Statutes, and specifically section 440.39 of that statute....

...The attorney’s fee and costs ultimately paid by *500 Case in connection with his third party action totaled $120,818.62. The lower court applied the formula adopted in National Ben Franklin Insurance Co. v. Hall, 340 So.2d 1269 (Fla. 4th DCA 1976), and determined that section 440.39(3)(a), Florida Statutes, entitled Southeastern to $16,930.11 in satisfaction of its lien. The National Ben Franklin formula, enunciated prior to the 1977 amendment of section 440.39{3)(a), requires the carrier to share an equitable portion of the plaintiffs attorney’s fees and costs associated with the conduct of the civil litigation....

...er the Workers’ Compensation Law are fixed as of the time of the employee’s injury. Sullivan v. Mayo, 121 So.2d 424, 428 (Fla.1960). The statute applicable to the present matter is the one in effect when the injury Case sustained occurred, i.e., Section 440.39(3)(a), Florida Statutes (1981), as it was amended in 1977....

...it to become a participant in the attorney’s fee and costs identified with the tort action. Thus, because the lower court determined that Case’s actual recovery was reduced to $300,000.00 from its true value of $1,000,000.00, our application of section 440.39(3)(a) discloses that Southeastern was entitled to 30% [300,000.00/1,000,000.-00] of the amount it had paid to and on behalf of Case in benefits, i.e., .30 X 94,-485.97 = 28,345.79....

...The lower court relied on State, Division of Risk Management v. McDonald, 436 So.2d 1134 (Fla. 5th DCA 1983), in applying the National Ben Franklin formula. The Fifth District determined in that instance that the formula survived the 1977 amendment of section 440.39(3)(a)....

...4th DCA 1985) and we recognize the forceful equitable considerations underlying the Fourth District’s view that National Ben Franklin produces a just result. We note that our conflict with National Ben Franklin has been substantially resolved by the legislature. With an effective date of June 30, 1983, section 440.39(3)(a) was amended to provide that in a matter of this kind, the attorney’s fees and costs expended in the third party tort action are also to be prorated. We do not, however, perceive our function to include departing from the manifest meaning of section 440.39(3)(a) as it existed in 1981....

...s to Enid Rathburn, the claimant-employee, notwithstanding Rathburn’s earlier settlement agreement with the third-party tortfeasors in a personal injury action. We find that the lower court erred in its application of the statutory requirements of Section 440.39, Florida Statutes (1979), and reverse and remand....

* *,’ lie # * ” The court further noted' that § 440.39(1)-expressly preserves to an injured employee-a

...t suit. The action involved a claim by George R. Wetzler for personal injuries sustained as a result of a highway accident involving Wetzler, and a driver for defendants. The complaint was filed by the Travelers Insurance Company, under authority of § 440.39, Florida Statutes, F.S.A., in its capacity as compensation carrier, individually, and for the use and benefit of George R....

...The defendants have appealed and, by their brief and argument, they have posed three questions to this court, namely: 1) Did the lower court commit reversible error when it instructed the jury, over defendant’s objection, on sub-sections (3) (a),. (4) (a), and (5), of § 440.39, Florida Statutes, F.S.A.? 2) Did the trial court commit reversible-error when it failed to caution the jury to-disregard the remarks of plaintiff’s counsel when he urged the jury to return a verdict in accordance with the Christmas spiri...

...As stated in some decisions the injection of some foreign or extraneous matter tends to cloud the true issues and confuse the jury.” Workmen’s compensation is a statutory creation, and the statutes of the various states differ. It is clear, however, that under § 440.39(4) (a), Florida Statutes, F.S.A., a compensation carrier may institute a suit in its own name, under certain conditions....

...Having found reversible error in the first point raised by the appellants, we will have to reverse the case for a new trial. Reversed. ■ ALLEN, C. J., and PATTEN, GEO. L., Associate Judge, concur. . The court’s instruction deviated from the exact wording of the statute in only minor details, and reads as follows: “Section 440.39, Subsection (3), Compensation for injuries where third persons are liable....

...His claims against Rinker included the intentional misconduct exception to worker’s compensation immunity, a claim which remains pending in the trial court. The court dismissed additional claims Jimenez alleged against Rinker based on spoliation of evidence and a violation of section 440.39(7), Florida Statutes (2002), which requires an employer to cooperate with the employee in the prosecution of claims against third party tortfeasors....

...The trial judge again rendered a fifteen (15%) per cent equitable distribution. We reverse. The claimant failed to demonstrate in the record, and therefore did not sustain his burden to show a recovery of less than the full value of his injuries. Therefore, pursuant to Section 440.39(3)(a), Florida Statutes (1975), the employer and its workmen’s compensation carrier were entitled to fifty (50%) per cent of what was paid and future benefits to be paid. The appellee attempts to defeat the lien of the carrier because of an alleged failure to record its lien, as provided in Section 440.39, Florida Statutes (1975)....

...440.15. *277 Unlike the PIP statute, however, the workers’ compensation law establishes a lien upon any judgment or settlement recovered by the injured employee from a third-party tortfeasor to the extent of workers’ compensation benefits paid. § 440.39(3)(a)....

...The employee’s claim against the alleged tortfeasor involved in the accident was ultimately settled for $75,000. Winn-Dixie, a self-insurer, filed a notice of lien seeking reimbursement of $27,964.05, representing the amount of benefits paid to the employee subsequent to the second injury. 1 See § 440.39(3)(a), Fla.Stat....

...he employee ... can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collecti-bility. The burden of proof will be upon the employee. § 440.39(3)(a). This court has previously held that 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....

...In essence, the employee’s argument is that he sustained no damages in the automobile accident, thus making the $75,000 settlement a gratuity, 3 and, therefore, all the benefits paid were paid as a result of the first injury, to which no lien arises under section 440.39(3)(a)....

...The employee, on the other hand, has failed to carry his burden of establishing that the benefits paid were paid for some other purpose. 4 We recognize that this allocation of burdens is not necessarily the “fairest” allocation. Nevertheless, this court has previously acknowledged that the controlling statute, section 440.39(3)(a), is “conspicuously void of equitable notions.” United Parcel Services v....

...unlikely that the $350,000 settlement in that case was a gratuity. 432 So.2d at 704 . . Likewise, the employee failed to demonstrate that he did not recover the full value of damages sustained because of comparative negligence or collectibility. See § 440.39(3)(a).

...Simmons and the third party tort-feasor reached a settlement after the verdict in the amount of $55,917.75. The satisfaction was signed on January 24, 1966, and filed January 31, 1966. The present controversy arose on Ryder’s motion to determine the validity of the lien claimed under Section 440.39 Fla.Stats., F.S.A., by Maryland Casualty....

...We believe the Workmen’s Compensation Act, as it now stands, permits this carrier’s lien for equitable distribution upon the settlement proceeds. The steps the carrier must follow to secure a lien or to sue the third party tort-feasor are clearly defined by Section 440.39 only in certain situations....

...If suit had not been brought by the employee within one year after the cause of action accrued, the employer, if a self-insurer, or the carrier could bring an action against the third party tort-feasor. The results in some situations arising under Section 440.39, Fla.Stats., F.S.A., are clear. Section 440.39 permits equitable distribution where the carrier has filed his notice of payment of benefits in a suit between the employee and the tort-feasor. Section 440.39(4) allows the carrier to sue the third party tort-feasor where the employee has failed to bring his suit within one year from the date the cause of action has accrued. If the case is settled before suit is brought, Section 440.39(3) (b) permits the carrier to obtain equitable distribution....

...quitable distribution of the settlement proceeds. Bituminous Cas. Corp. v. Florida Power & Light Co., Fla.App.1966, 190 So.2d 426 . The carrier, in this situation, can elect to sue the third party to enforce its rights of subrogation pursuant to Section 440.39(4). Dickerson v. Orange State Oil Company, Fla.App.1960, 123 So.2d 562 ; Dade County v. Michigan Mutual Liability Company, Fla.App.1961, 130 So.2d 111 . We believe, however, that Section 440.39 contemplates the filing of one suit only against the third party tortfeasor. Section 440.39(4), Fla.Stats., F.S.A.; Cook Motor Company v. Vaughn, supra. If the carrier has been notified of the employee’s suit and does not file its notice of payment of benefits in the suit under Section 440.39 (3) (a), it is precluded from any other remedy. Cook Motor Co. v. Vaughn, supra. What results when a carrier does not file its notice of payment in the employee’s Section 440.39(3) (a) suit, because the third party failed to give the carrier notice of the suit? The carrier cannot institute his subrogation suit against the tort-feasor because 440.39(4) only permits the carrier’s suit if the employee does not institute suit. Section 440.39(3) (b) is designed to protect the carrier in those situations not fully protected under Section 440.39(3) (a). Cook Motor Company v. Vaughn, supra. Since the Act only contemplates one suit, and the policy of the Act is to prevent settlement between employee and third parties tort-feasor without the consent of the carrier, Section 440.39(3) (b) should and does preserve the carrier’s right to obtain equitable distribution if its provisions are satisfied....

...Manfredo, 542 So.2d 1365 (Fla. 3d DCA 1989), approved, 560 So.2d 1162 (Fla.1990). However, the court erred in awarding interest because of an alleged delay in establishing the amount of the lien and in failing to provide for a reduction of 6.3% as to future benefits. § 440.39(3)(a), Fla.Stat....

...Subsequent to Payless, the Fifth District held that the trial court does not have the discretion to limit a carrier’s lien on future benefits to indemnity benefits to the exclusion of medical benefits. Tarmac of Florida v. Gwaltney, 604 So.2d at 907 . The court based its decision on section 440.39(3)(a), Florida Statutes (1991), which expressly states that the term “benefits” includes both compensation and medical benefits, and provides that the carrier’s pro rata recovery applies against each....

...iberty Mutual was on actual or constructive notice of the potential third party claim since March 1986 and elected not to bring an action on behalf of Ms. Jakubowski, the notice was barred by the general four-year statute of limitations. We reverse. Section 440.39 creates a right of subrogation for the compensation carrier in any action against a third party tortfeasor....

...If the employee fails to file suit within one year, the carrier may initiate an action. If the carrier does not bring suit within two years of the accrual of the cause of action, the right of action reverts to the employee. Actions by the employee are governed by section 440.39(3)(a) which provides in part: *783 In all claims or actions at law against a third-party tortfeasor, the employee ......

...[2] The order striking the statutory workers compensation lien is quashed. SHARP and COWART, JJ., concur. NOTES [1] Bancroft dealt with an unsuccessful effort to intervene. Bancroft was permitted to appeal even though he was not formally a party to the action. [2] Section 440.39(3)(a) provides that notice of the employee's suit shall be served upon the employer and the compensation carrier and that notice of payment of compensation shall be served upon the employee and all parties to the suit....

...ted and judgment entered. The contention is forcefully made that the determination could only be made by the Circuit Court in Broward County where both plaintiff and defendant resided and the cause of action arose. Subsection (3) (h) introduced into Section 440.39 in 1959 is the provision upon which appellant relies and claims that it was entitled to have the determination made by the Circuit Court of Broward County, in which it instituted a proceeding for that relief....

...or past and future benefits. Plaintiffs then raised what they considered to be defenses and a bar to the payment of any of the settlement proceeds to the carrier. They raise as support for their position the fact that the carrier did not comply with section 440.39(3)(a), Florida Statutes (1985) and cite some cases which were decided under a statute which has been amended since the cases were decided. We consider this case to be without precedent directly on point. Section 440.39, Florida Statutes (1985) is long and in most parts not directly applicable to the decision we reach, so we must extract the pertinent parts as we apply them to the facts in this case....

...ement recovered to the extent that the court may determine_” This language is permissive (“may”) in its wording but if a lien is sought then it is at least directory and can be said to be mandatory. But given the two requirements at the end of section 440.39(3)(a), mentioned above, we are convinced that actual notice to the parties, in this case, is sufficient to put this plaintiff and the tortfeasor on notice of the interests of the carrier and that plaintiffs’ failure to give the requi...

LETTS, Chief Judge. Involved here is an appeal by a Workers’ Compensation Carrier, denied equitable distribution which it claimed under Section 440.39(3)(a), Florida Statutes (1977)....

.... Kerce v. Coca-Cola Co.-Foods Div., 389 So.2d 1177 , 1177 n. 1 (Fla.1980); Simmons v. City of Coral Gables, 186 So.2d 493, 495 (Fla.1966). .See General Fire & Casualty Co. v. First Nat'l Bank of Tampa, 306 So.2d 193, 193-94 (Fla. 2d DCA 1975); § 440.39(3)(a), Fla.Stat. (1971). But cf. Gangler v. South Fla. Crane Serv., 385 So.2d 153, 154 (Fla. 4th DCA 1980) (interpreting 1977 version of compensation lien statute); § 440.39(3)(a), Fla.Stat....

...don’t believe that he has yet been allowed in excess of a single recovery for one injury from a third-party tortfeasor. The legislature has attempted to prevent the possibility of double recovery by an injured employee by enacting (3) (b) of F.S. § 440.39 in 1959, F.S.A....

...intain suit for its equitable distribution against the tortfeasor and his insurer. In Shelby Mut. Ins. Co. v. Russell, supra, the Florida Supreme Court noted that the problem involved herein is simply not contemplated nor resolved by Florida Statute Section 440.39, F.S.A....

...action. Final judgment was entered and the present appeal taken. We initially conclude the trial court was correct in finding that the failure to record the worker’s compensation lien was fatal to this claim. The statute in effect at the time was Section 440.39(3)(a), Florida Statutes (1977), which specifically required that a lien be recorded....

...inappropriate. Such an application would reopen all prior litigation which had been determined under the prior statute requiring recordation. When Travelers Insurance Company settled the initial personal injury action, it had the right to rely upon Section 440.39(3), Florida Statutes (1977) which required recording of all worker’s compensation liens....

...Travelers contends that Robert Jacobs failed to demonstrate that he did not recover the full value of “damages sustained because of the limits of insurance coverage and collectibility”, and it asserts *1263 its eligibility for the maximum recovery provided by section 440.39(3)(a), Florida Statutes (1975)....

...Travelers Indemnity Company, the insurance carrier for Richards Department Store, provided workmen’s compensation benefits. When appellee Jacobs and his wife sued the tort-feasor, Arthur Corlazzoli, and the City of Miami, Travelers filed a workmen’s compensation lien in accordance with section 440.39(3)(a), Florida Statutes (1975)....

...Travelers sought a 50% statutory recovery. § 440.-39(3)(a), Fla.Stat. (1975) 2 The trial court found, however, that Jacobs had not recovered the full value of damages sustained and accordingly awarded Travelers a 15% recovery. Travelers appealed. Section 440.39(3)(a), Florida Statutes (1975); the law in effect at the time of the accident, provides: Upon suit being filed the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medi...

...ve negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee. Such proration shall be made by the judge of the trial court upon application therefor and notice to the adverse party. Under section 440.39(3)(a), a party who seeks to limit the return of benefits under equitable distribution is required to prove that “he did not recover the full value of damages sustained because of comparative negligence or because of limits in insurance coverage and collectibility.” See Safeco Insurance Co....

...Travelers argued that it was entitled to the statutory maximum recovery because Jacobs had failed to show that additional monies could not be collected from Arthur Corlazzoli. It contended that Jacobs had failed to meet the “collectibility” requirement of section 440.39. We agree with Travelers Indemnity Company that Jacobs failed to satisfy the requirements of section 440.39(3)(a); he failed to demonstrate his inability to collect from the tort-feasor Corlazzoli and thereby recover the full value of his damages....

...Reversed and remanded for further proceedings to determine the issue of collecti-bility. . The settlement was authorized by a resolution adopted by the City of Miami Commission. Section 768.28(5), Florida Statutes (1975) would have limited the city’s liability under the waiver of sovereign immunity to $50,000 per claim. . Section 440.39(3)(a) was amended in 1977 to provide 100% recovery....

...Southeast Recycling Corporation and Royal Insurance Company, the employer/carrier (E/C), appeal a nonfinal discovery order entered by the Judge of Compensation Claims (JCC) that compels production of the densifier machine that Beverly McClure, Claimant, was cleaning when she was injured. Because section 440.39(7), Florida Statutes (1993), provides that the employee, employer, and carrier have a duty to cooperate with each other in investigating and prosecuting claims and potential claims against third-party tort-feasors by producing non-priv...

...Estate of Pitcher, 564 So.2d 1118 (Fla. 1st DCA 1990), for their position that they have no duty to cooperate by producing the items requested. Suburban Propane , however, is inapposite because its facts are materially 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....

...was not relevant to what is applicable to the Workers’ Compensation Claim. Here the Claimant was seeking discovery to investigate potential claims against the manufacturer and others as third-party tortfeasors, a clearly proper purpose pursuant to section 440.39(7)....

to the settlement of a personal injury suit. Section 440.39(3)(a), Fla.Stat. (1977). Appellant asserts

ALLEN, Chief Judge. The appellant, as plaintiff in the lower court,, brought this action in its capacity as insurance carrier under section 440.39(4), Florida Statutes, F.S.A., to recover damages for injuries sustained by Richard L....

...y or village for any negligent or wrongful injury or damage to person or property, unless brought within twelve months from the time of the injury. The injury in this case occurred on February 19, 1957. This suit was instituted on February 16, 1959. Section 440.39(4), Florida Statutes, F.S....

...The rights of plaintiff carrier under the workmen’s compensation law are wholly the creature of the statute and are based upon the cause of action which the claimant had against the defendant city and subject to the limited subrogation rights under the terms and conditions set forth in section 440.39, Florida Statutes, F.S.A., Cushman Baking Co....

...The action remains as one for personal injuries to the claimant and, therefore, subject to the same statute of limitations. Thus we conclude that the claimant’s rights, having been barred by section 95.24, the carrier’s rights, derived by operation of section 440.39(4), are likewise barred by section 95.24....

injury settlement agreement pursuant to Fla. Stat. § 440.39, F.S.A. The appellant is the workmen’s compensation

amount of attorney’s fees and costs permitted by section 440.39(3)(a), Florida Statutes [1985].” Id. at 548

...61-435, Workmen’s Compensation Lienor, Home Indemnity Company, as carrier, and Tri-City Septic Tank Company, as employer v. McAdams, Armored Car Service of Florida and Wesley Carl Knight, Fla.App., 139 So.2d 433 . The order appealed allotted to the workmen’s compensation lienor an amount pursuant to subsection 3 of § 440.39, Fla.Stat.,F.S.A....

...The employee-plaintiff, being dissatisfied with the amount awarded the workmen’s compensation lienor, has prosecuted this appeal. The employee contends that having correctly decided that the insurance carrier could not recover under subsection 4 of § 440.39, Fla.Stat.,F.S.A., the trial judge then incorrectly determined that the carrier had rights under subsection 3....

...1 See , *1203 e.g. , Gayer v. Fine Line Constr. & Elec., Inc. , 970 So.2d 424 (Fla. 4th DCA 2007) (holding that special employer had duty under workers' compensation law to preserve evidence for injured laborer's claim against third-party tortfeasor based on section 440.39(7), Fla....

...1 See , *1203 e.g. , Gayer v. Fine Line Constr. & Elec., Inc. , 970 So.2d 424 (Fla. 4th DCA 2007) (holding that special employer had duty under workers' compensation law to preserve evidence for injured laborer's claim against third-party tortfeasor based on section 440.39(7), Fla....

...ount of ... [her] ... settlement” with the tort-feasor, i.e., to the extent plaintiff paid the worker’s compensation carrier for the satisfaction of the worker’s compensation lien, “plus the amount of attorney’s fees and costs permitted by section 440.39(3)(a), Florida Statutes [1985].” Id....

...This is an appeal by the plaintiff (a Workmen’s Compensation recipient) from an order granting equitable distribution to the Workmen’s Compensation insurance carrier of the proceeds of appellant’s settlement with a third party tort-feasor. See § 440.39, Fla.Stat., F.S.A....

...the defendant, City of West Palm Beach, pursuant to an order granting defendant’s motion to dismiss the second amended complaint. Plaintiff brought this action in his sub-rogated capacity as workmen’s compensation insurance carrier under F.S.A. § 440.39(4) to recover damages for personal injuries sustained by Ivy Messer as the result of the city’s negligence....

...f alleges that Messer had advised the insurance carrier that he would not bring suit in his own behalf against the city. The trial judge granted defendant’s motion to dismiss on the ground that plaintiff did not have a cause of action under F.S.A. § 440.39(4) (a) because at the time of filing the original complaint less than a year had expired since the occurrence of the accident. The issue, whether the plaintiff carrier has the right to bring this suit, is before the court as a result of the dilemma created by conflict in the provisions of F.S.A. § 440.39(4) (a) and F.S.A. § 95.24. F.S.A. § 440.39(4) provides that, if the injured employee or his dependents fail to bring suit against the third party tort-feasor within one year after the cause of action thereof shall have accrued, the insurance carrier may institute suit against such third party tort-feasor....

...The problem confronting the carrier is that, if the carrier has no cause of action against defendant until the claimant has received compensation benefits and has failed to commence an action against the defendant within twelve months from the time the cause of action accrued, as provided by F.S.A. § 440.39(4) (a), then the cause of action once arising will become barred through the operation of F.S.A....

...en’s compensation law are wholly the creature of the statute, are based upon the cause of action which the claimant has against the defendant city and are subject to the limited subrogation rights under the terms and conditions set forth in F.S.A. § 440.39....

...r right to recover their losses where municipalities were involved by pointing out that it is not the function of the courts through judicial decision to propound remedial legislation and that any action to alter the apparent conflict between F.S.A. § 440.39(4) and F.S.A....

...is not 'controlling here because there the sole inquiry was whether the carrier’s suit was *176 barred after one year by F.S.A. § 95.24. Plaintiff submits that the question in the instant case is whether the statutory cause of action under F.S.A. § 440.39 accrues to plaintiff prior to the expiration of the one year interval, and, if so, whether the renunciation by the injured claimant operates to permit assertion of the cause of action by the carrier prior to expiration of one year? Plaintiff contends that F.S.A. § 440.39(4) (a) must be considered in pari materia with F.S.A. § 440.39(2). Under such a construction plaintiff argues that the carrier’s subrogated interest accrues upon payment of compensation benefits without regard to a one-year interval. Plaintiff submits that the 'practical effect of F.S.A. § 440.39(4) (a) is to suspend the carrier’s right to assert the accrued sub-rogated interest for one year....

...Plaintiff then argues that the one-year suspension is for the benefit of the injured claimant .and that the claimant can waive the right to bring suit thereby allowing the carrier to institute suit before the expiration of one year. Plaintiff’s attempt to avert the inequitable result created by the conflict between F.S.A. § 440.39(4) (a) and F.S.A. § 95.24 fails for two reasons. First, the two sections, F.S.A. § 440.39 (2)and F.S.A. § 440.39(4) (a), are two separate and distinct provisions setting forth the carrier’s limited right of subrogation in two distinct situations. F.S.A. § 440.39 (2) provides that, when a carrier has paid compensation benefits to an employee, then to that extent it shall be subrogated to the rights of the employee against such third party tort-feasor as provided by subsection (3) of F.S.A..§ 440.39. F.S.A. § 440.39(3) defines the limited nature of this right of subrogation, confining 'it to the right to a lien on the .judgment recovered by the claimant when the claimant has brought suit against the third party tort-feasor. See Arex Indemnity Company v. Radin, Fla. 1955, 77 So.2d 839 . Thus, it is clear that F.S.A. § 440.39(2) is to be read in pari materia with F.S.A. § 440.39(3), which covers the situation where the claimant has either brought suit or has settled his claim against the third party tort-feasor. It is, therefore, apparent that F.S.A. § 440.39(2) has no bearing where the claimant has taken no action against the third party tort-feasor. F.S.A. § 440.39(4) (a) clearly defines the limited subrogated interest of the carrier where the claimant has not filed suit. Therefore, the carrier’s subrogated interest accrues, if at all, within the provisions of F.S.A. § 440.39(4) (a)....

...In the appealed order the judge also referred to an employer/carrier lien on the proceeds of the claimant’s settlement of a third-party action. The circuit court is the jurisdictional forum for any disputes regarding such a lien. University of Central Florida v. Gleaves, 586 So.2d 458 (Fla. 1st DCA 1991); § 440.39(3)(b), Fla.Stat....

...On the present appeal from this order, IMC's only contention is that the judge of compensation claims should have allowed an offset against indemnity benefits. No question of IMC's entitlement to benefit from the settlement proceeds in any amount has ever been presented to a circuit court as contemplated by section 440.39(3)(a) or (when settlement is reached before suit is brought) (b), Florida Statutes (1991)....

...[of IMC's] pro rata share [if any] for compensation and medical benefits paid or to be paid under the provisions of this law, less their pro rata share of all court costs expended by the plaintiff in the prosecution of the suit including reasonable attorney's fees for the plaintiffs attorney. § 440.39(3)(a), Fla....

...But we affirm without prejudice to any proceeding in circuit court which might afford the judge of compensation claims an appropriate predicate for ordering an offset in proceedings subsequently initiated under section 440.28, Florida Statutes. Absent a stipulation both as to entitlement to an offset and as to its amount, section 440.39, Florida Statutes (1991), contemplates a judicial determination of the net amount of any recovery against a third-party tortfeasor and then of the ratio of the net recovery to the amount of damages a workers' compensation claimant actu...

...The situation in Rockhaulers closely resembles the situation here: The second issue concerns the right of a compensation carrier to set off the recovery obtained by an injured employee from a third party tortfeasor against compensation benefits due the injured employee. See § 440.39(1), Fla.Stat. (1987). The section 440.39 provisions limit the amount of the compensation carrier's set-off to its pro rata share of the compensation and medical benefits paid or to be paid, less its pro-rata share of all court costs and reasonable attorney fees expended by the claimant in prosecution of the claim against the third party tortfeasor....

...(In the present case, a petition for benefits was filed before judgment was entered against the third party tortfeasors.) Because the parties in Rockhaulers stipulated that the carrier was entitled to a setoff, the only thing "to be determined by the trial court in accordance with the provisions of section 440.39(3)(a)," 554 So.2d at 657, was the amount of the setoff. Section 3(a) provides that the "determination of the amount of the employer's or carrier's recovery shall be made by the judge of the trial court upon application therefor and notice to the adverse party." § 440.39(3)(a), Fla....

...GC-G-94-2651 (Fla. 10th Cir.1994), before final judgment was entered, a question on which we express no opinion. We are also apprised that the effect of the release IMC gave CTL may be litigated in any circuit court proceeding IMC might initiate pursuant to section 440.39(3), Florida Statutes (1991)....

...ff employer sought based on employee's recovery from third-party tortfeasor] and there is no appeal provided for to the Deputy Commissioner or to the Full Commission"); Murray v. Harborside Hosp., 634 So.2d 1129, 1130 (Fla. 1st DCA 1994) (construing § 440.39(3)(b), Fla....