ETS of New Orleans, Inc. v. Jones, 98-00625.

• Decision Date: 12 May 1999
• Docket Number: No. 98-00625.,98-00625.
• Citation: 738 So.2d 958
• Parties: ETS OF NEW ORLEANS, INC., Appellant, v. Brian JONES and Suzette Jones, his wife, Appellees.
• Court: Florida District Court of Appeals

738 So.2d 958

ETS OF NEW ORLEANS, INC., Appellant, v. Brian JONES and Suzette Jones, his wife, Appellees.

No. 98-00625.

District Court of Appeal of Florida, Second District.

May 12, 1999.

Rehearing Denied July 7, 1999.

Robert A. LeVine and M. Mitchell Newman of Newman, LeVine, Metzler & Shankman, Tampa, for Appellant.

Gerald R. Herms, Tampa, for Appellees.

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. (ETS), had asserted a worker's compensation lien. ETS contends that the trial court committed three errors. First, it claims that the court improperly permitted counsel for the defendant in the underlying tort suit to testify as an expert on the value of that tort claim, and, second, that the court improperly determined the full value of the tort claim. We hold that the record supports the trial court's rulings on these two issues and affirm them without further discussion. ETS's third contention is that the trial court improperly included in its final order of equitable distribution all costs incurred by the injured worker instead of just taxable costs. ETS's third contention is meritorious and we reverse only as to that issue.

The appellee, Brian Jones, was employed by Ed Smith Steel Erectors, Inc. ETS provided the workers' compensation insurance to Mr. Jones' employer at the time of the accident in 1994. While on the jobsite, Mr. Jones had to walk along the eight-inch wide top of a partially constructed concrete block wall, through which a four-foot high segment of PVC pipe protruded. The pipe had been installed by Lawhorn Plumbing, another subcontractor on the project. Mr. Jones grabbed the two-inch diameter pipe in an effort to swing around it; unfortunately, it broke and he fell 18 feet to the concrete floor below. As a result of the fall, Mr. Jones suffered compression fractures of the first, second, and third lumbar vertebrae as well as a broken ankle. His permanent injuries resulted in a whole person disability rating of 22 percent. ETS eventually paid him $124,460.12 in worker's compensation benefits.

Subsequently, Mr. Jones sued Lawhorn Plumbing for damages allegedly resulting from its negligence, and ETS filed a worker's compensation lien in the suit as allowed under Chapter 440. Ultimately, Mr. Jones and Lawhorn Plumbing settled for $50,000. Mr. Jones then petitioned for equitable distribution of the settlement proceeds in order to satisfy ETS' worker's compensation lien. Following an evidentiary hearing, the trial court awarded ETS only $5,102.86. 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...