Florida Statutes

Fla. Stat. § 440.39 (2025)

Compensation for injuries when third persons are liable.

✓ 2025 Florida Statutes — current through the 2025 Regular Session

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440.39 Compensation for injuries when third persons are liable.—

(1) If an employee, subject to the provisions of the Workers’ Compensation Law, is injured or killed in the course of his or her employment by the negligence or wrongful act of a third-party tortfeasor, such injured employee or, in the case of his or her death, the employee’s dependents may accept compensation benefits under the provisions of this law, and at the same time such injured employee or his or her dependents or personal representatives may pursue his or her remedy by action at law or otherwise against such third-party tortfeasor.

(2) If the employee or his or her dependents accept compensation or other benefits under this law or begin proceedings therefor, the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor, to the extent of the amount of compensation benefits paid or to be paid as provided by subsection (3). If the injured employee or his or her dependents recovers from a third-party tortfeasor by judgment or settlement, either before or after the filing of suit, before the employee has accepted compensation or other benefits under this chapter or before the employee has filed a written claim for compensation benefits, the amount recovered from the tortfeasor shall be set off against any compensation benefits other than for remedial care, treatment and attendance as well as rehabilitative services payable under this chapter. The amount of such offset shall be reduced by the amount of all court costs expended in the prosecution of the third-party suit or claim, including reasonable attorney fees for the plaintiff’s attorney. In no event shall the setoff provided in this section in lieu of payment of compensation benefits diminish the period for filing a claim for benefits as provided in s. 440.19.

(3)(a) 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; and such suit may be brought in the name of the employee, or his or her dependents or those entitled by law to sue in the event he or she is deceased, as plaintiff or, at the option of such plaintiff, may be brought in the name of such plaintiff and for the use and benefit of the employer or insurance carrier, as the case may be. 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 to the extent that the court may determine to be their pro rata share for compensation and medical benefits paid or to be paid under the provisions of this law, less their pro rata share of all court costs expended by the plaintiff in the prosecution of the suit including reasonable attorney’s fees for the plaintiff’s attorney. In determining the employer’s or carrier’s pro rata share of those costs and attorney’s fees, the employer or carrier shall have deducted from its recovery a percentage amount equal to the percentage of the judgment or settlement which is for costs and attorney’s fees. Subject to this deduction, the employer or carrier shall recover from the judgment or settlement, after costs and attorney’s fees incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, except, if the employee or dependent can demonstrate to the court that he or she did not recover the full value of damages sustained, the employer or carrier shall recover from the judgment or settlement, after costs and attorney’s fees incurred by the employee or dependent in that suit have been deducted, a percentage of what it has paid and future benefits to be paid equal to the percentage that the employee’s net recovery is of the full value of the employee’s damages; provided, the failure by the employer or carrier to comply with the duty to cooperate imposed by subsection (7) may be taken into account by the trial court in determining the amount of the employer’s or carrier’s recovery, and such recovery may be reduced, as the court deems equitable and appropriate under the circumstances, including as a mitigating factor whether a claim or potential claim against a third party is likely to impose liability upon the party whose cooperation is sought, if it finds such a failure has occurred. The burden of proof will be upon the employee. The determination of the amount of the employer’s or carrier’s recovery shall be made by the judge of the trial court upon application therefor and notice to the adverse party. Notice of suit being filed shall be served upon the employer and compensation carrier and upon all parties to the suit or their attorneys of record by the employee. Notice of payment of compensation benefits shall be served upon the employee and upon all parties to the suit or their attorneys of record by the employer and compensation carrier. However, if a migrant worker prevails under a private cause of action under the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) 96 Stat. 2583, as amended, 29 U.S.C. ss. 1801 et seq. (1962 ed. and Supp. V), any recovery by the migrant worker under this act shall be offset 100 percent against any recovery under AWPA.

(b) If the employer or insurance carrier has given written notice of his or her rights of subrogation to the third-party tortfeasor, and, thereafter, settlement of any such claim or action at law is made, either before or after suit is filed, and the parties fail to agree on the proportion to be paid to each, the circuit court of the county in which the cause of action arose shall determine the amount to be paid to each by such third-party tortfeasor in accordance with the provisions of paragraph (a).

(4)(a) If the injured employee or his or her dependents, as the case may be, fail to bring suit against such third-party tortfeasor within 1 year after the cause of action thereof has 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 or her dependents and the injured employee’s attorney, if represented by counsel, institute suit against such third-party tortfeasor, either in his or her 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 or her 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 the employee’s 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 in which compensation benefits under this law are paid or are to be paid, settlement may not be made either before or after suit is instituted except upon agreement of the injured employee or his or her dependents and the employer or his or her insurance carrier, as the case may be.

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

(7) The employee, employer, and carrier have a duty to cooperate with each other in investigating and prosecuting claims and potential claims against third-party tortfeasors by producing nonprivileged documents and allowing inspection of premises, but only to the extent necessary for such purpose. Such documents and the results of such inspections are confidential and exempt from the provisions of s. 119.07(1), and shall not be used or disclosed for any other purpose.

History.—s. 39, ch. 17481, 1935; CGL 1936 Supp. 5966(38); s. 14, ch. 18413, 1937; s. 1, ch. 23822, 1947; s. 1, ch. 26546, 1951; s. 1, ch. 59-431; s. 6, ch. 70-148; s. 18, ch. 74-197; s. 11, ch. 77-290; s. 23, ch. 78-300; ss. 30, 124, ch. 79-40; s. 21, ch. 79-312; s. 280, ch. 81-259; s. 15, ch. 83-305; s. 9, ch. 84-267; s. 5, ch. 86-171; ss. 21, 43, ch. 89-289; ss. 35, 56, ch. 90-201; ss. 33, 52, ch. 91-1; s. 5, ch. 91-269; s. 287, ch. 96-406; s. 1053, ch. 97-103.

Notes of Decisions

Cited in 267 cases (4 in the last 5 years), 1944–2025 · leading case: Jones v. ETS of New Orleans, Inc., 793 So. 2d 912 (Fla. 2001).

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Jones v. ETS of New Orleans, Inc., 793 So. 2d 912 (Fla. 2001). · cites it 23× “In Brandt , the Third District addressed the issue of whether, under section 440.39, the employer's share should be determined by using the net amount or the gross amount of recovery.”

City of Hollywood v. Lombardi, 770 So. 2d 1196 (Fla. 2000). · cites it 13× “At the same time, the First District recognized that both of these cases addressed earlier versions of section 440.39 and that "neither Nikula nor Manfredo address this precise issue.”

Kimbrell v. Paige, 448 So. 2d 1009 (Fla. 1984). · cites it 10× “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 tort-feasor within 1 year after the cause of action thereof shall have accrued, the employer, if a self-insurer,…”

Shaw v. Cambridge Integrated Servs. Grp., Inc., 888 So. 2d 58 (Fla. 4th DCA 2004). · cites it 18× “Under section 440.39, the insurer is entitled to recover such amounts realized from both the products liability and the spoliation actions because together they sought to recover the whole of the damages suffered from the negligently made ladder.”

Gen. Cinema Beverages v. Mortimer, 689 So. 2d 276 (Fla. 3d DCA 1995). · cites it 19× “That is so because the employee has brought suit against the employer based on section 440.39, Florida Statutes. This provision of the workers' compensation law applies solely to employees who have received workers' compensation benefits.”

Jones v. Martin Elec., Inc., 932 So. 2d 1100 (Fla. 2006). · cites it 9× “See § 440.39, Fla. Stat. (2000). Section 440.”

Anderson Columbia v. Brewer, 994 So. 2d 419 (Fla. 1st DCA 2008). · cites it 22× “Appellants claim that because they have been paying workers’ compensation benefits to Appellee for the paving machine injury, they are entitled, under section 440.39, Florida Statutes (1989), to a portion of the funds he received in a legal malpractice settlement with the…”

Zurich v. Weeden, 805 So. 2d 945 (Fla. 4th DCA 2001). · cites it 28× “The trial court denied the Petition, on the bases that: (1) section 440.39, Florida Statutes, does not authorize a workers’ compensation lien in a legal malpractice action; and (2) the Petition was untimely.”

SOUTHLAND CONS., INC. v. Greater Orlando Aviation, 860 So. 2d 1031 (Fla. 5th DCA 2003). · cites it 7× “39, Florida Statutes, contained in the workers' compensation statute, precludes Southland from asserting a claim against it for any increase in its workers' compensation insurance premiums. Section 440.39 of the Florida Workers' Compensation Law provides for compensation to…”

Florida Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). · cites it 2× “1984) (Public Records Act enforcement); § 440.39(3)(a), Fla. Stat. (Supp. 1984) (workers' compensation actions); § 64.”

City of Hollywood v. Lombardi, 738 So. 2d 491 (Fla. 1st DCA 1999). · cites it 19× “§ 440.39, Fla. Stat. (1993) (emphasis supplied).”

Jimenez v. Cmty. Asphalt Corp., 968 So. 2d 668 (Fla. 4th DCA 2007). · cites it 14× “Appellants maintain that all four of these counts are founded on alleged violations of section 440.39(7), Florida Statutes (2006).”

Show all 267 citing cases →

— 440.39(1) — 20 cases

City of Hollywood v. Lombardi, 770 So. 2d 1196 (Fla. 2000). “At the same time, the First District recognized that both of these cases addressed earlier versions of section 440.39 and that "neither Nikula nor Manfredo address this precise issue.”

Holmes Cnty. Sch. Bd. v. Duffell, 651 So. 2d 1176 (Fla. 1995).

Shaw v. Cambridge Integrated Servs. Grp., Inc., 888 So. 2d 58 (Fla. 4th DCA 2004). “Under section 440.39, the insurer is entitled to recover such amounts realized from both the products liability and the spoliation actions because together they sought to recover the whole of the damages suffered from the negligently made ladder.”

Gen. Cinema Beverages v. Mortimer, 689 So. 2d 276 (Fla. 3d DCA 1995). “That is so because the employee has brought suit against the employer based on section 440.39, Florida Statutes. This provision of the workers' compensation law applies solely to employees who have received workers' compensation benefits.”

Rockhaulers, Inc. v. Davis, 554 So. 2d 654 (Fla. 1st DCA 1989).

— 440.39(2) — 26 cases

Kimbrell v. Paige, 448 So. 2d 1009 (Fla. 1984). “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 tort-feasor within 1 year after the cause of action thereof shall have accrued, the employer, if a self-insurer,…”

SOUTHLAND CONS., INC. v. Greater Orlando Aviation, 860 So. 2d 1031 (Fla. 5th DCA 2003). “39, Florida Statutes, contained in the workers' compensation statute, precludes Southland from asserting a claim against it for any increase in its workers' compensation insurance premiums. Section 440.39 of the Florida Workers' Compensation Law provides for compensation to…”

Bruner v. Caterpillar, Inc., 627 So. 2d 46 (Fla. 1st DCA 1993).

— 440.39(3) — 49 cases

Jones v. ETS of New Orleans, Inc., 793 So. 2d 912 (Fla. 2001). “In Brandt , the Third District addressed the issue of whether, under section 440.39, the employer's share should be determined by using the net amount or the gross amount of recovery.”

Arex Indem. Co. v. Radin, 72 So. 2d 393 (Fla. 1954).

Ins. Co. of Texas v. Rainey, 86 So. 2d 447 (Fla. 1956).

City of Hollywood v. Lombardi, 738 So. 2d 491 (Fla. 1st DCA 1999). “§ 440.39, Fla. Stat. (1993) (emphasis supplied).”

Purdy v. Gulf Breeze Enter., Inc., 403 So. 2d 1325 (Fla. 1981).

— 440.39(3)(a) — 128 cases

Florida Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). “1984) (Public Records Act enforcement); § 440.39(3)(a), Fla. Stat. (Supp. 1984) (workers' compensation actions); § 64.”

Aetna Ins. Co. v. Norman, 468 So. 2d 226 (Fla. 1985).

State, Dept. of Health v. Culmer, 402 So. 2d 1273 (Fla. 3d DCA 1981).

Manfredo v. Emp.'s Cas. Ins. Co., 560 So. 2d 1162 (Fla. 1990).

— 440.39(3)(b) — 9 cases

Rockhaulers, Inc. v. Davis, 554 So. 2d 654 (Fla. 1st DCA 1989).

Hartford Ins. Co. v. Goff, 4 So. 3d 770 (Fla. 2d DCA 2009).

Imc Agrico Mp, Inc. v. Faulk, 783 So. 2d 321 (Fla. 1st DCA 2001).

Zurich v. Weeden, 805 So. 2d 945 (Fla. 4th DCA 2001). “The trial court denied the Petition, on the bases that: (1) section 440.39, Florida Statutes, does not authorize a workers’ compensation lien in a legal malpractice action; and (2) the Petition was untimely.”

Univ. of Cent. Fla. v. Gleaves, 586 So. 2d 458 (Fla. 1st DCA 1991).

— 440.39(4) — 24 cases

Gen. Guar. Ins. Co. v. Moore, 143 So. 2d 541 (Fla. 2d DCA 1962).

Aetna Cas. & Sur. Co. v. Bortz, 271 So. 2d 108 (Fla. 1972).

United States Cas. Co. v. Town of Palm Beach, 119 So. 2d 800 (Fla. 2d DCA 1960).

Maryland Cas. Co. v. Simmons, 193 So. 2d 446 (Fla. 2d DCA 1966).

— 440.39(4)(a) — 9 cases

Lopez-Loarca v. Cosme, 76 So. 3d 5 (Fla. 4th DCA 2011).

Sandrew Const. v. DeFourny, 515 So. 2d 1351 (Fla. 2d DCA 1987).

— 440.39(4)(b) — 3 cases

Anderson Columbia v. Brewer, 994 So. 2d 419 (Fla. 1st DCA 2008). “Appellants claim that because they have been paying workers’ compensation benefits to Appellee for the paving machine injury, they are entitled, under section 440.39, Florida Statutes (1989), to a portion of the funds he received in a legal malpractice settlement with the…”

— 440.39(5) — 1 case

Saunders v. Alois, 604 So. 2d 18 (Fla. 4th DCA 1992).

— 440.39(7) — 19 cases

Jimenez v. Cmty. Asphalt Corp., 968 So. 2d 668 (Fla. 4th DCA 2007). “Appellants maintain that all four of these counts are founded on alleged violations of section 440.39(7), Florida Statutes (2006).”

Lincoln Ins. Co. v. Home Emergency Servs., Inc., 812 So. 2d 433 (Fla. 3d DCA 2002).

Suburban Propane v. Est. of Pitcher, 564 So. 2d 1118 (Fla. 1st DCA 1990).

Humana Worker's Comp. Servs. v. Home Emergency Servs., Inc., 842 So. 2d 778 (Fla. 2003).

— 440.39(a) — 2 cases

Luscomb v. Liberty Mut. Ins. Co., 967 So. 2d 379 (Fla. 3d DCA 2007).

Suarez Trucking Fl Corp. v. Adam J. Souders (Fla. 2022).

— 440.39(b) — 2 cases

Aetna Ins. v. Harter, 379 So. 2d 1019 (Fla. 2d DCA 1980).

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