Century Elevator Co. v. Spinos, 93-2549

• Decision Date: 22 March 1995
• Docket Number: No. 93-2549,93-2549
• Citation: 652 So.2d 451
• Parties: 20 Fla. L. Weekly D732 CENTURY ELEVATOR CO., Appellant, v. Myrna SPINOS, Appellee.
• Court: Florida District Court of Appeals

Page 451

652 So.2d 451

20 Fla. L. Weekly D732

CENTURY ELEVATOR CO., Appellant, v. Myrna SPINOS, Appellee.

No. 93-2549.

District Court of Appeal of Florida,

Fourth District.

March 22, 1995.

Shelley H. Leinicke of Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Lane, P.A., Fort Lauderdale, for appellant.

Kelley B. Gelb and Walter G. Campbell of Krupnick, Campbell, Malone, Roselli, Buser, Slama and Hancock, P.A., Fort Lauderdale, for appellee.

STONE, Judge.

Century Elevator Co., Inc. appeals an order granting an insurance company's motion to determine a worker's compensation lien. The trial court concluded that it had subject matter jurisdiction notwithstanding a prior final order of the court, years earlier, dismissing this case upon the parties' stipulation to a dismissal with prejudice. We disagree and reverse.

Initially, Myrna Spinos sued Century Elevator Company, Inc. for injuries she had received while at work. General Accident Insurance Company, the worker's compensation carrier for Spinos' employer, filed a notice of worker's compensation lien in the case. The trial court appointed a mediator and the mediation resulted in a settlement which was reflected in an exchange of letters contained in the record of this post-dismissal litigation. The letters included provisions in the settlement relating to payment of General Accident's lien. The parties executed a release of all claims, which was not executed by General Accident. Thereafter, the parties filed their stipulation for dismissal with prejudice and the trial court entered its final order of dismissal. Nearly two years later General Accident filed its motion to determine its worker's compensation lien, acknowledging that Spinos had reimbursed it 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. Sec. 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. Sec. 440.39(3)(a), Fla.Stat. (1993). A tort-feasor who has notice of the carrier's subrogation claim settles with the employee only at the tort-feasor's own risk, unless the carrier is notified. Bituminous Cas. Corp. v. Florida Power & Light Co., 190 So.2d 426 (Fla. 4th DCA 1966), cert. denied, 200 So.2d 811 (Fla.1967).

On General Accident's motion, the court found that Spinos' net recovery amounted to 65.11% of the value of her claim, that General Accident therefore was authorized to reduce future medical benefits by 65.11% until General Accident recovered Spinos' net recovery, that Century Elevator was required to reimburse Spinos for the 65.11% withheld by General Accident pursuant to the settlement agreement "which recites that the Defendant has agreed to discharge all Workers Compensation Liens," all disputed facts. Century Elevator appealed. Ultimately, Century Elevator and General Accident stipulated to General Accident's dismissal, and this court accordingly dismissed the appeal as to General Accident but not as to Spinos.

We reverse because the trial court lacked jurisdiction to review, modify, or enforce the settlement in this closed case. Buonopane v. Ricci, 603 So.2d 713 (Fla. 4th DCA 1992). The effect of a plaintiff's voluntary dismissal was "to terminate the litigation instantaneously," "to remove completely from the court's consideration the power to enter an order, equivalent in all respects to a deprivation of 'jurisdiction'." Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68, 68-69 (Fla.1978). Accord Heston v. Vitale, 432 So.2d 744 (Fla. 4th DCA 1983); Piper Aircraft Corp. v. Prescott, 445 So.2d 591 (Fla. 1st DCA 1984); United Servs. Auto. Ass'n v. Johnson, 428 So.2d 334 (Fla. 2d DCA 1983). The entry of Plaintiff's dismissal even divests the court of jurisdiction to entertain a motion to reinstate the proceeding, subject to certain recognized exceptions. See Broadband Eng'g, Inc. v. Quality RF Servs., Inc., 450 So.2d 600 (Fla. 4th DCA 1984). See also Shampaine Indus., Inc. v. South Broward Hosp. Dist., 411 So.2d 364, 367 (Fla. 4th DCA 1982) (relief afforded where dismissal was clerical mistake, not a "volitional dismissal"), approved, Miller v. Fortune Ins. Co., 484 So.2d 1221 (Fla.1986).

An analogous case is Wallace v. Townsell, 471 So.2d 662 (Fla. 5th DCA 1985). In Wallace, the court entered a final judgment in accordance with a settlement agreement. However, the court subsequently entered orders arising out of disputes concerning the agreement. The Fifth District noted that any breach of the settlement agreement could be the subject...