Kimbrell v. Paige

• Decision Date: 05 April 1984
• Docket Number: No. 63171,63171
• Citation: 448 So.2d 1009
• Parties: Dorman K. KIMBRELL, Jr., and Earlene M. Kimbrell, his wife, Petitioners, v. Phillip PAIGE, et al., Respondents.
• Court: Florida Supreme Court

Page 1009

448 So.2d 1009

Dorman K. KIMBRELL, Jr., and Earlene M. Kimbrell, his wife, Petitioners, v. Phillip PAIGE, et al., Respondents.

No. 63171.

Supreme Court of Florida.

April 5, 1984.

Schuler & Wilkerson, P.A., and Edna L. Caruso, West Palm Beach, for petitioners.

Samuel Tyler Hill of Hill & Neale, Fort Lauderdale, Frank W. Weathers of Weathers & Seaman, Lantana, for respondents.

ADKINS, Justice.

This cause is before us on a question certified to the Court by the Fourth District Court of Appeal in Kimbrell v. Paige, 422 So.2d 902, 905 (Fla. 4th DCA 1982), as one of great public importance. The question is:

Does Section 440.39(4), Florida Statutes (1981), bar a separate suit against a third party tort-feasor by an injured employee when such suit is filed more than one year after the cause of action accrued and the compensation carrier, in the second year following the accident, gave the thirty day notice of its intention to seek subrogation and filed an appropriate suit against the third party tort-feasor?

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Section 440.39(4-6), Florida Statutes (1981), reads:

(4)(a) If the injured employee or his dependents, as the case may be, fail to bring suit against such third-party tortfeasor within 1 year after the cause of action thereof shall have accrued, the employer, if a self-insurer, and if not, the insurance carrier, may, after giving 30 days' notice to the injured employee or his dependents and the injured employee's attorney, if represented by counsel, institute suit against such third-party tortfeasor, either in his own name or as provided by subsection (3), and, in the event suit is so instituted, shall be subrogated to and entitled to retain from any judgment recovered against, or settlement made with, such third party, the following: All amounts paid as compensation and medical benefits under the provisions of this law and the present value of all future compensation benefits payable, to be reduced to its present value, and to be retained as a trust fund from which future payments of compensation are to be made, together with all court costs, including attorney's fees expended in the prosecution of such suit, to be prorated as provided by subsection (3). The remainder of the moneys derived from such judgment or settlement shall be paid to the employee or his dependents, as the case may be.

(b) If the carrier or employer does not bring suit within 2 years following the accrual of the cause of action against a third-party tortfeasor, the right of action shall revert to the employee or, in the case of his death, those entitled by law to sue, and in such event the provisions of subsection (3) shall apply.

(5) In all cases under subsection (4) involving third-party tortfeasors, where compensation benefits under this law are paid, or are to be paid, settlement either before or after suit is instituted shall not be made except upon agreement of the injured employee or his dependents and the employer or his insurance carrier, as the case may be.

(6) Any amounts recovered under this section by the employer or his insurance carrier shall be credited against the loss-experience of said employer.

The district court concluded that the language of the statute contemplates the filing of only one suit against the third-party tortfeasor. 422 So.2d at 903 (citing Maryland Casualty Co. v. Simmons, 193 So.2d 446, 449 (Fla. 2d DCA 1966)). The petitioners contend that the language of the statute does not prevent them from filing a separate action against the tortfeasor in spite of the fact that his compensation carrier has filed suit against the tortfeasor and his given him notice in accordance with section 440.39.

The facts of this case show that the petitioner, Dorman Kimbrell, was injured in an automobile accident in the course of his employment. His compensation carrier paid him disability and medical benefits. Over a year after the accident had occurred, the carrier gave notice to petitioners' attorney and filed suit against the tortfeasors. While this suit was pending, petitioners Dorman Kimbrell and his wife, Earlene Kimbrell, filed suit. The defendants in petitioners' common law action filed a motion to dismiss in the trial court alleging that the judgment obtained in the carrier's suit barred petitioners' claim. The trial court entered an order dismissing the suit with prejudice and the appeal to the district court followed. ¹ The Fourth District Court of Appeal affirmed the trial court's decision.

When an employee is injured while in the course of his employment and he later accepts compensation benefits, the compensation carrier becomes subrogated to the rights of the employee against the tortfeasor to the amount of the benefits paid. § 440.39(2), Fla.Stat. (1981). The statute gives the carrier the right to institute an action against the third-party tortfeasor if the employee does not institute an action during the first year after the accrual of the cause of action. § 440.39(4)(a); Jersey Insurance Co. v. Cuttriss, 220 So.2d 15 (Fla. 3d DCA 1969). If the employee does not bring suit within the first year, the insurance carrier can file suit after giving the required thirty-day notice to the employee (or his dependents) and the employee's attorney. § 440.39(4)(a). It is clear that the right to institute suit is concurrent during the second year after the accrual of the cause of action, but if the carrier does file suit first, we believe that the only sensible interpretation of the intent of the statute is that it precludes the employee from also being able to maintain suit at that time. Accord Cuttriss; Maryland Casualty Co. v. Simmons, 193 So.2d 446 (Fla. 2d DCA 1966); Zurich Insurance Co. v. Renton, 189 So.2d 492 (Fla. 2d DCA 1966), cert. denied, 200 So.2d 815 (Fla.1967). We agree with the presumption made by our Second District Court of Appeal in Zurich Insurance Co. v. Renton. That court discussed the legislative intent in allowing the compensation carrier to file an action during the second year after the accident and stated: "[I]t is to be presumed that this was intended by the legislature as a matter of policy, thus to hasten the disposition of third party litigation." 189 So.2d at 494 (citing General Insurance Co. v. Moore, 143 So.2d 541 (Fla. 2d DCA 1962).

This Court recognized that only one suit against an alleged tortfeasor is contemplated by section 440.39 in the case of Aetna Casualty and Surety Co. v. Bortz, 271 So.2d 108 (Fla.1972). As was indicated by the Fourth District below, Bortz is not factually on all fours with the instant case. Nonetheless, the basic premise underlying Bortz is that the statute does not permit more than one suit to be brought for the claim of an injured worker against a tortfeasor.

The decision below contains an excerpt from Bortz. The excerpt emphasizes that the ultimate governance of the cause is within the province of the employer when suit is brought under subsection (4)(a). Cooperation by the claimant is expected since the employer is initiating the action for the claimant's ultimate use and benefit under the statute. 422 So.2d at 905, citing 271 So.2d at 114.

In Bortz this Court examined the history of statutory schemes of subrogation and workers' compensation claims. We stated:

The consequences of these successive revisions cannot be ignored. They represent a continuing legislative endeavor to balance respective interests in a manner consistent with the underlying theory that a double recovery should be avoided without extending tort immunity to strangers outside of the employer-employee relationship.

271 So.2d at 113. This conclusion is important in the context of the instant case. If the petitioners' position were adopted by this Court, the consequence would be that a double recovery would be likely to result. In the present case the carrier has already obtained a judgment for the amount of its expenditures for medical, loss of wages and loss of wage earning capacity. These same items are claimed in petitioners' suit. Since the payments to petitioner under workers' compensation cannot be revealed to the trier of the facts, a double recovery is almost certain to occur. See § 627.7372(3), Fla.Stat. (1981).

As Bortz points out, it was the legislative intent to provide an inducement for the injured worker to initiate his own speedy remedy against the third party by filing suit within one year. If he failed to do so, the employer was then allowed to protect his interests by filing suit after the first year. 271 So.2d at 112-13. It is obvious that if the petitioners' contentions were to be adopted by us, the legislative purpose of the statute as...