Fidelity & Cas. Co. of N.Y. v. Bedingfield

• Decision Date: 05 August 1952
• Citation: 60 So.2d 489
• Court: Florida Supreme Court
• Parties: FIDELITY & CAS. CO. OF NEW YORK v. BEDINGFIELD et al.

Page 489

60 So.2d 489

FIDELITY & CAS. CO. OF NEW YORK v. BEDINGFIELD et al.

Supreme Court of Florida, Special Division B.

Aug. 5, 1952.

Rehearing Denied Oct. 3, 1952.

Leo M. Alpert, Miami, for petitioner.

John C. Wynn, Miami, for respondent.

MATHEWS, Justice.

There has been filed a petition for a writ of certiorari to review a final order of the Circuit Court of the Eleventh Circuit denying the petitioner's motion to be added as a party plaintiff in a pending common law suit for personal injuries.

An employee of a drive-in lunchroom in Dade County was severely injured by an automobile owned by Richard D. Morales, which was being operated by his wife, with his knowledge, consent and permission. The petitioner was the Workmen's Compensation insurer of the drive-in lunchroom. The injured employee filed her claim against the employer and the carrier, and the carrier at the time of the motion to intervene in the suit had paid the sum of $6,750 as required by the Workmen's Compensation Law.

The employee filed a complaint in the Circuit Court in Dade County as sole plaintiff against Morales and his wife, claiming $300,000 damages for loss of her earnings, pain and suffering, maiming and disfigurement, and medical expenses growing out of the accident. 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 fle notice of payment of Workmen's Compensation benefits pursuant to section 440.39, F.S.A. Later on the petitioner filed a motion in the pending cause in the Circuit Court to be added as a party plaintiff under Common Law Rule 17, 30 F.S.A. In that motion, the petitioner here stated:

'7. That The Fidelity & Casualty Company of New York by virtue of its right of subrogation desires to be represented, insofar as its interest is concerned, by counsel of its own choosing for the reason that such Company engages its own counsel in its own discretion, this right of representation being asserted without any reflection upon Plaintiff's counsel, John C. Wynn, Esq., a most able member of the Bar.

'8. That The Fidelity & Casualty Company of New York by virtue of its right of subrogation desires to be represented, insofar as its interest is concerned, by counsel of its own choosing for the additional reason that the interest of Emma D. Bedingfield may not and would reasonably appear not to coincide with the interest of The Fidelity & Casualty Company of New York in several events; as, for example, in the event of a recovery in this cause equal to or less than the amount of compensation benefits paid and to be paid in the future; or in the event of settlement of this cause on the basis of that attempted in Common Law Action No. 26160 entitled 'Richard D. Morales and Freida Morales, his wife; and Hartford Accident and Indemnity Company, a corporation authorized to do business in the State of Florida, Plaintiffs, vs. Florida Industrial Commission, a body politic of the State of Florida; Colonel Jim's Trail, Inc., a Florida corporation; Emma D. Bedingfield; and Fidelity and Casualty Company of New York, a corporation authorized to do business in the State of Florida, Defendants', still pending in this Court, as by reference to said cause will appear; or in the event of an attempted settlement of the instant suit without the consent and approval of the Compensation Carrier; this enumeration of conflict of interests not being exclusive of other likely conflicts.

'9. That, however, The Fidelity & Casualty Company of New York and Emma D. Bedingfield have the same interest insofar as a successful prosecution of this cause is concerned.

'10. That, by virtue of the foregoing, The Fidelity & Casualty Company of New York does not deem that it is liable to the Plaintiff's attorney for attorney's fees in the event of any recovery herein; and at the appropriate time will move this Court for an Order so stating; it appearing premature to pray for such ruling in this Motion, but the rights of the Compensation Carrier in that regard not being waived or intended to be waived.'

That on March 17th, 1952 an order was made and entered in the Circuit Court in the pending suit denying the motion to be made party plaintiff reading as follows:

'This cause coming on to be heard upon the motion 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 of compensation and medical benefits, which shall constitute a lien upon any judgment recovered, that The Fidelity & Casualty Company of New York, a corporation, who is the insurance carrier of the employer of the plaintiff in this cause, is not entitled to be joined as a party plaintiff herein under the provisions of said statute; and

'It is therefore considered 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.1951), when an employee injured by a third party tort-feasor has claimed and been paid compensation and has also sued the third party tort-feasor in the name of the employee alone, does the Compensation Carrier have a right to intervene as a party plaintiff in such lawsuit?', and '(2) If such intervention is denied, is the Act constitutional?'.

As to the second question, in its' brief, the petitioner stated that it did not wish to raise the constitutionality of the law, and the question was not argued in the brief, or before the Court on oral argument, therefore, the second question was abandoned by petitioner and it is unnecessary that it be considered in this proceeding.

The Workmen's Compensation Law was unknown to the Common Law. Prior to the enactment of these laws an injured employee could not be compensated for damages received for personal injuries, or damages occasioned by an accident, from the employer unless his claim was based upon the negligence of such employer. Law suits were expensive and the employer had the right to raise such defenses as contributory negligence, fellow-servant's negligence and assumption of risk. Workmen's Compensation Laws have been enacted in all of the states in the Union so that employees could be at least partially compensated for injuries received in highly organized and hazardous industries of modern times whether the injury was caused by negligence of the employer or otherwise. These laws create administrative boards and commissions and provide for immediate and certain payment to be borne by the employer and without the necessity of proof of negligence or long drawn-out and expensive law suits and the uncertainty of the result of such law suits. As a part of these compensation laws we have the compensation insurer, whereby for certain premiums paid by the employer, the compensation insurer undertakes to make 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. Prior to the amendment of 1951, this section provided that if the employee was injured in the course of his employment by a third party tort-feasor the employee must make an election to take compensation or pursue his action at law in the civil courts against the third party tort-feasor. Notice of election must have been given within 30 days from the date of the accident, and the giving of the notice to accept compensation operated as an assignment to the employer's insurance carrier of all right of the injured employee against the third party tort-feasor. Out of the amount recovered against the third party tort-feasor the employer's insurance carrier would retain all expenses incurred in the prosecution of the law action, including a reasonable attorney's fee, and all workmen's compensation benefits and compensation paid to the injured employee, and would also retain an amount equal to the present value of all future compensation to be paid the injured employee. Whatever was left, if any, was then paid over to the injured employee.

It should be noted that prior to the amendment when an employee made an election to accept compensation, the employee had no right whatsoever to maintain or control a suit against a third party who caused his injury and the injured employee was practically at the mercy of the employer or the insurance carrier. Many situations arose throughout the state which resulted at times in injustice to the employee. Many situations have arisen where the...