481 So. 2d 499 | Fla. Dist. Ct. App. | 1985
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. In 1981, during employment with C & T Erectors, Richard Case was injured. He received compensation payments and medical expenses in accordance with Chapter 440. Following the recovery of $300,000.00 in settlement of the action he initiated against the third party tortfeasor, Case moved the lower court to determine the amount Southeastern was entitled to be reimbursed pursuant to the statute. Southeastern expended $66,441.51 in connection with Case’s medical treatment and it paid him $28,-044.66 in compensation benefits. The attorney’s fee and costs ultimately paid by
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. See Sentry Insurance Co. v. Keefe, 427 So.2d 236, 237, n.l (Fla.3d DCA 1983). Thus, under that formula the carrier’s lien is reduced by a fractional portion of the attorney’s fee and costs expended by the claimant in the third party action. We find reversible error in the lower court’s reliance upon the National Ben Franklin formula and the accompanying result.
It is well established that the substantive rights of the respective parties under 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.
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). However, this
Accordingly, the lower court’s order is reversed with direction that it enter an order consistent with this opinion.
. Application of the National Ben Franklin formula is expressed in the following arithmetical computation which produced the result we reject:
. The statute in its 1981 form provides that: "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 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 liability.”