Pursell v. Sumter Elec. Co-op., Inc., CO-OPERATIV
| Decision Date | 11 December 1964 |
| Docket Number | INC,No. 4663,CO-OPERATIV,4663 |
| Parties | Virginia W. PURSELL, individually, and as Administratrix of the Estate of Robert Eugene Pursell, deceased, Appellant, v. SUMTER ELECTRIC, a Florida Corporation, and Gulf American Fire & Casualty Company, Appellees. |
| Court | Florida District Court of Appeals |
C. Ray Greene Jr., of Greene, Greene & Kennelly, Jacksonville, for appellant.
Andrew G. Patillo, Jr., Ocala, for appellee, Gulf American Fire & Casualty Co.
The plaintiff appeals a judgment awarding distribution of an amount previously recovered by plaintiff on a final judgment entered in an action at law. The husband of the plaintiff was killed in an accident caused by a third party tort-feasor which occurred in the course of his employment. The decedent was survivied by his widow (the plaintiff) and two minor children. Appellee, the workmen's compensation carrier of the deceased husband's employer, began payments to the widow retroactive to the date of the decedent's death. The plaintiff remarried and compensation payments to her as widow terminated. Then the plaintiff, individually and as administratrix of the estate of her deceased husband, filed her complaint against the tort-feasor under the wrongful death and survival statutes seeking both compensatory and punitive damages. The compensation carrier filed written notice of its claim of subrogation. Thereafter, the plaintiff, the defendant-third party tort-feasor and the compensation carrier entered into a stipulation agreeing to the entry of a final judgment in favor of the plaintiff and against the defendant in the sum of $68,500. This stipulation did not allocate the plaintiff's recovery either between her two causes of action or between the plaintiff and the workmen's compensation carrier. The court entered final judgment in favor of the plaintiff and against the defendant for the total sum specified in the stipulation.
Thereafter, the court heard the parties upon the subrogation claim of the workmen's compensation carrier. The plaintiff and the compensation carrier stipulated the amount of compensation and other benefits paid and to be paid by the carrier by virtue of the death of the plaintiff's husband. This included a breakdown of the amounts paid to the plaintiff as the widow, a breakdown of the amounts paid and to be paid for the benefit of the minor children and an amount representing combined medical and burial expenses. The court entered a judgment detailing its findings and awarding the full amount of all sums paid and to be paid by the workmen's compensation carrier (less its pro rata share of the plaintiff's attorney's fees) to the carrier and the balance to the plaintiff. 1 It is from this order distributing the sum recovered by the final judgment that the plaintiff appeals, contending in effect that a workmen's compensation carrier is entitled to recover only the amount of compensation and other benefits paid to the plaintiff as the widow of the deceased employee and that the court erred in ordering the plaintiff-widow individually to pay the compensation carrier sums representing amounts which the carrier had paid or would pay for the benefit of minor children.
The parties agree to the facts so we have for determination only the application of the proper principles of law to the facts. The applicable provisions of the Workmen's Compensation law are set forth in § 440.39, Fla.App.,Stat., F.S.A., as follows:
'(1) If an employee * * * is * * * killed in the course of his employment by the * * * wrongful act of a third party tort-feasor * * * his dependents, may accept compensation benefits * * * and at the same time * * * pursue his remedy * * * against such third party tort-feasor.
'(2) If * * * his dependents shall accept compensation or other benefits under this law * * * the insurer, shall be subrogated to the rights of his * * * dependents against such third party tort-feasor, to the extent of the amount of compensation benefits paid or to be paid as provided by subsection (3) of this section.
'(3)(a) In all claims or actions at law against a third party tort-feasor, the employee, or his dependents, or those entitled by law to sue in the event he is deceased, shall sue for the employee individually, and for the use and benefit of the * * * employer's insurance carrier, in the event compensation benefits are claimed or paid * * * Upon suit being filed * * * the insurance carrier * * * may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents * * * and the same shall constitute a lien upon any judgment recovered to the extent that the court may determine to be their pro rata share for compensation benefits paid or to be paid under the provisions of this law, based upon such equitable distribution of the amount recovered as the court may determine * * *.'
We are of the view that the foregoing quoted provisions of the act clearly authorize an award to a workmen's compensation insurance carrier based upon compensation paid or to be paid for the benefit of minor children, as well as benefits paid or payable to a surviving widow, in circumstances...
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