Florida Statute 440.39 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title XXXI
LABOR

Chapter 440
WORKERS' COMPENSATION

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F.S. 440.39

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.

F.S. 440.39 on Google Scholar

F.S. 440.39 on Casetext

Amendments to 440.39

Arrestable Offenses / Crimes under Fla. Stat. 440.39

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 440.39.

Annotations, Discussions, Cases:

Cases Citing Statute 440.39

Total Results: 20

CAPTAIN D'S, LLC v. UNIFIED BRANDS, INC. AND REGINA AKINS

Court: District Court of Appeal of Florida | Date Filed: 2024-07-12

Snippet: Regina Akins. The trial court, governed by section 440.39(3), Florida Statutes (2023), found that Akins

Suarez Trucking Fl Corp. v. Adam J. Souders

Court: Supreme Court of Florida | Date Filed: 2022-10-20

Snippet: compensation lien created by operation of section 440.39, Florida Statutes (2014). The Second District’s

DIVESTON MERLIEN v. JM FAMILY ENTERPRISES, INC., SHERIDIAN 441, LLC and BENDLES RENTALS, LLC

Court: District Court of Appeal of Florida | Date Filed: 2020-07-22

Snippet: this argument, the plaintiff references section 440.39, Florida Statutes (2017), which provides that an

Shamrock-Shamrock, Inc. v. Remark

Court: District Court of Appeal of Florida | Date Filed: 2019-04-26

Citation: 271 So. 3d 1200

Snippet: against third-party tortfeasor based on section 440.39(7), Fla. Stat.). To establish a spoliation cause

Shamrock-Shamrock, Inc. v. Remark

Court: District Court of Appeal of Florida | Date Filed: 2019-04-26

Citation: 271 So. 3d 1200

Snippet: against third-party tortfeasor based on section 440.39(7), Fla. Stat.). To establish a spoliation cause

School Board of Broward County v. City of Coral Springs

Court: District Court of Appeal of Florida | Date Filed: 2016-03-02

Citation: 187 So. 3d 287, 2016 Fla. App. LEXIS 3124, 2016 WL 805300

Snippet: lawsuit against it given the provisions of section 440.39(4), Florida Statutes (2011). We decline to consider

Anheuser-Busch Companies, Inc. v. Staples

Court: District Court of Appeal of Florida | Date Filed: 2013-10-09

Citation: 125 So. 3d 309, 2013 WL 5567497, 2013 Fla. App. LEXIS 16026

Snippet: also filed a Notice of Lien pursuant to section 440.39(3)(a), Florida Statutes, in the tort action on

Lopez-Loarca v. Cosme

Court: District Court of Appeal of Florida | Date Filed: 2011-10-19

Citation: 76 So. 3d 5, 2011 Fla. App. LEXIS 16363, 2011 WL 4949808

Snippet: request for damages to those available under section 440.39, Florida Statutes (2000). In June, 2004, the plaintiff

Cannino v. Progressive Express Insurance Co.

Court: District Court of Appeal of Florida | Date Filed: 2010-12-17

Citation: 58 So. 3d 275, 2010 Fla. App. LEXIS 19397, 2010 WL 5129298

Snippet: extent of workers’ compensation benefits paid. § 440.39(3)(a). The lien is reduced pro rata if the employee

Braun v. Brevard County

Court: District Court of Appeal of Florida | Date Filed: 2010-09-30

Citation: 44 So. 3d 1216, 2010 Fla. App. LEXIS 14885, 2010 WL 3783441

Snippet: subrogation rights in these settlement proceeds, § 440.39, Fla. Stat. (2005), the precise extent of which

Gibbons v. Gibbons

Court: District Court of Appeal of Florida | Date Filed: 2009-03-18

Citation: 10 So. 3d 127, 2009 Fla. App. LEXIS 2216, 2009 WL 691179

Snippet: outstanding from Lee Groves in the amount of $62,440.39. After the filing of the dissolution petition,

Hartford Insurance Co. v. Goff

Court: District Court of Appeal of Florida | Date Filed: 2009-03-13

Citation: 4 So. 3d 770, 2009 Fla. App. LEXIS 2019

Snippet: compensation benefits in that action pursuant to section 440.39(3)(a), Florida Statutes (2001), thereby asserting

Anderson Columbia v. Brewer

Court: District Court of Appeal of Florida | Date Filed: 2008-10-22

Citation: 994 So. 2d 419, 2008 Fla. App. LEXIS 16427, 2008 WL 4643815

Snippet: machine injury, they are entitled, under section 440.39, Florida Statutes (1989), to a portion of the funds

Gayer v. FINE LINE CONSTRUCTION & ELECTRIC, INC.

Court: District Court of Appeal of Florida | Date Filed: 2008-03-05

Citation: 2 So. 3d 296, 2008 Fla. App. LEXIS 3009, 2008 WL 583455

Snippet: supply services company has a duty under section 440.39(7), Florida Statutes, to preserve evidence for

Gayer v. Fine Line Const. & Elec., Inc.

Court: District Court of Appeal of Florida | Date Filed: 2007-11-28

Citation: 970 So. 2d 424, 2007 WL 4179312

Snippet: supply services company has a duty under section 440.39(7), Florida Statutes, to preserve evidence for

Riser v. Hartford Ins. Co.

Court: District Court of Appeal of Florida | Date Filed: 2007-11-21

Citation: 971 So. 2d 878, 2007 WL 4124963

Snippet: workers' compensation claim and filed a section 440.39(2) subrogation lien in the personal injury action

Jimenez v. Community Asphalt Corp.

Court: District Court of Appeal of Florida | Date Filed: 2007-11-14

Citation: 968 So. 2d 668, 2007 WL 3355411

Snippet: counts are founded on alleged violations of section 440.39(7), Florida Statutes (2006). In 2001, Orlando was

Luscomb v. Liberty Mut. Ins. Co.

Court: District Court of Appeal of Florida | Date Filed: 2007-10-17

Citation: 967 So. 2d 379, 2007 WL 3009847

Snippet: *380 This case turns on the application of section 440.39(3)(a), Florida Statutes, as in force on the date

Perez v. La Dove, Inc.

Court: District Court of Appeal of Florida | Date Filed: 2007-09-12

Citation: 964 So. 2d 777, 2007 Fla. App. LEXIS 14247, 2007 WL 2609381

Snippet: the Florida Workers' Compensation Law, section 440.39(7), Florida Statutes (1989), an additional, implied

Vasquez v. Sorrells Grove Care, Inc.

Court: District Court of Appeal of Florida | Date Filed: 2007-08-17

Citation: 962 So. 2d 411, 2007 WL 2330926

Snippet: medical benefits and wage compensation). See § 440.39(3)(a), Fla. Stat. (2000). Jones, 932 So.2d at 1108