This article was originally published in the Subrogator, a publication by the National Association of Subrogation Professionals, Fall, 2010. © Copyright 2010 by NASP. All rights reserved. Republished by Butler with permission from NASP.
Under Florida’s Workers’ Compensation Statute, when an employee is injured in his/her Course and Scope of employment due to the negligence of a third party, the injured worker is able to pursue recovery for his/her injuries from the negligent third party; and the workers’ compensation carrier is entitled to assert a lien in the amount of the benefits provided against any settlement or judgment obtained by the injured worker. Specifically, the statute provides:
In all claims or actions at law against a third-party tortfeasor, the employee, or his or her dependents or those entitled by law to sue in the event he or she is deceased, shall sue for the employee individually and for the use and benefit of the employer; if a self- insurer; or employer’s insurance carrier, in the event compensation benefits are claimed or paid… Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his or her dependents, which notice shall constitute a lien upon any judgment or settlement recovered.1
Given that the statute provides that the lien is applicable to “all claims or actions at law,” Florida courts have consistently applied the worker’s compensation lien rights to the full amount of any recovery obtained by the estate of a deceased worker. However, in Hartford Insurance Company v. Gregory Allen Goff Sr.,2 the Second District Court of Appeals held that “the scope of recovery under Florida’s Wrongful Death Act is broader than the scope of the carrier’s lien.”3 The Court also stated that “Florida courts recognize that the survivors’ claims in a wrongful death action are for their sole benefit, and that the creditors of the estate may not settle their claims against the survivors’ recovery;”4 The Court in Goff, Sr. relied on the decision in Coon v. Continental Insurance Company, in which, the Florida Supreme Court held that “the Coon children’s separate settlement with third-party tortfeasors is not subject to the carrier’s lien under the facts of this case, to demonstrate that there are claims available under the Wrongful Death Act, which are not subject to the lien provided under 44O.39 (3)(a) Fla. Stat.”5
As the court in Goff, Sr. determined that the recovery available under the wrongful death act is broader than the lien rights provided to workers’ compensation carriers pursuant §440.39(3)(a) Fla. Stat., Florida’s trial courts are now required to “ensure that the settlement proceeds are apportioned between the Estate and the survivors in a reasonable and equitable manner,”6 so that the carrier is able to “assert its lien against those settlement proceds attributable to the Estate’s claims, but not to those proceeds attributable to the survivors’ claims.”7
1 §440.39(3)(a) Fla. St (2010).
2 Hartford Insurance Company v. Gregory Allen Goff, Sr., as survivor and personal of the Estate of Gregory Allen Goff, Jr., et al, 4 So. 3d 770 (Fla. 2nd DCA 2009).
3 Golf, Sr., supra, at 772.
4 Id. at 773, citing, Scott v. Estate of Myers, 871 So. 2d 947, 94849 (Fla. 1st DCA 2004).
5 Id. at 974.
6 Golf, Sr., supra, at 773.