Brinson v. Southeastern Utilities Service Co.
| Decision Date | 12 March 1954 |
| Citation | 72 So.2d 37 |
| Parties | BRINSON v. SOUTHEASTERN UTILITIES SERVICE CO. |
| Court | Florida Supreme Court |
James W. Moore, Frank F. Cosgrove, Miami, for petitioner.
Blackwell, Walker & Gray, Miami, Burnis T. Coleman, Rodney Durrance, Tallahassee, for respondents.
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.
In the event an employee was injured by the negligence of a person other than his employer he was required to 'elect whether to accept compensation * * * or to pursue his * * * remedy against such third person' and if he chose the former course the employer, or, if insured, the employer's insurance carrier, became subrogated to the rights of the employee against the third person, and could institute an action and recover whatever the employee was entitled to recover. The law provided for distribution of the proceeds of any judgment so secured by reimbursement of the employer for amounts already paid to the employee as compensation and payment to the employer of sums yet to be paid, the latter to be reduced to present value and to be retained as a trust fund and used to meet the future installments of compensation as they came due. It will have been noticed that the first provision, for subrogation, relates to employer and carrier, the second, for distribution, only to employer, but this has no bearing on the points under consideration.
But this procedure depended on the institution of the suit by the employer or carrier within one year of the accrual of the action, provided 'that in any event the employer or insurer [should] have six months' after the subrogation which would occur by the election of the employee to accept compensation. Upon failure to bring an action within the prescribed time or upon waiver by the employer or carrier of the right to sue, or upon denial of compensation, the employee was authorized to sue on his own account for his own benefit and to recover 'full damages according to law regardless of the recovery of compensation * * *.' (Emphasis supplied.)
In this case none of the conditions just recited obtained and our decision hinges on the construction and application of the quotation we have italicized, for despite the acceptance of benefits and consequent subrogation, the carrier never sued and the question therefore arises whether the employee is entitled to compensation under the act, as if no judgment had been secured by him. The respondents make no contention that petitioner should return compensation received by him before the judgment awarded him was paid, but they insist that their responsibility to pay more then ceased.
From our study of the authorities, we are convinced that according to the sounder view no subrogation was available in the absence of statute. See Metropolitan Casualty Ins. Co. of New York v. Sloss-Sheffield Steel & Iron Co., 241 Ala. 545, 3 So.2d 306. Because of our pronouncement in Fidelity & Cas. Co. of New York v. Bedingfield, infra, we see no need to analyze the...
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...nurse while caring for her husband, but without discussion or explanation as to the reasons for so doing. Brinson v. Southeastern Utilities Service Co., 72 So.2d 37 (Fla., 1954); Brown v. Dennis, 114 So.2d 335 (Fla.App., The Florida Supreme Court has also allowed a wife compensation for nur......
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