SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D2023-2377 Lower Tribunal No. 16-CA-001000 _____________________________
LIBERTY MUTUAL INSURANCE COMPANY,
Appellant, v. ROBERT A. LEE, ASCO SERVICES, INC., EMERSON NETWORK POWER SOLUTIONS, INC., ELECTRICAL RELIABILITY SERVICES, INC., THYSSENKRUPP ELEVATOR CORPORATION, and BRUCE ALEXSON, Appellees. _____________________________
Appeal from the Circuit Court for Lee County. Keith R. Kyle, Judge.
February 7, 2025
BROWNLEE, J.
Liberty Mutual Insurance Company appeals the trial court’s final judgment
determining its equitable distribution of a settlement agreement and deciding its lien
amount under our workers’ compensation law. Specifically, Liberty Mutual
challenges the trial court’s decision to consider only the benefits paid up to the date
of the settlement, rather than the full amount of benefits paid, when calculating its lien amount. Because the trial court’s ruling excluded certain benefits paid by
Liberty Mutual in contravention of the statutory language, we reverse.
Appellee Robert A. Lee entered an elevator one day on the ground floor of the
medical center where he worked. After the elevator began to ascend, it suddenly
came to an abrupt halt, stopped for a moment, and then plunged into a free fall. The
elevator bounced off the ground floor and stopped upon hitting the ground a second
time. Lee was injured in the accident.
At the time, Liberty Mutual was the workers’ compensation liability carrier
for Lee’s employer, and it began paying benefits both to Lee and on his behalf. Lee
eventually sued the elevator operator, and Liberty Mutual filed a lien on the case,
under section 440.39(3)(a), Florida Statutes. After that case settled, 1 Liberty Mutual
sought its pro rata share of the settlement amount for the benefits it paid. But by that
time, the lien had increased substantially, and a dispute arose as to the amount
Liberty Mutual was owed. That amount is determined by a specific formula set forth
in section 440.39(3)(a).
Liberty Mutual filed a motion for equitable distribution in the trial court to
resolve the dispute. After a hearing on that motion, the trial court ordered Lee and
Liberty Mutual to non-binding arbitration to determine the “full case value” of Lee’s
suit against the elevator operator, or, as the statute puts it, the “full value of damages
1 The terms of the settlement agreement are confidential. 2 sustained” by Lee, as this number must be plugged into the statutory formula to
calculate the lien amount. See § 440.39(3)(a), Fla. Stat.
Ultimately, the arbitrator determined the full value of damages Lee sustained,
and both parties accepted that determination. Then, armed with that critical piece of
the puzzle, Lee and Liberty Mutual sought to calculate Liberty Mutual’s
reimbursement amount. They agreed on several amounts to be used in the formula,
including that Liberty Mutual was entitled to 11.61% of the benefits paid as its
equitable distribution from the settlement proceeds. But then another dispute arose.
Lee took the position that Liberty Mutual should only be reimbursed for
11.61% of the benefits it paid through the date of Lee’s settlement with the elevator
operator. Liberty Mutual, on the other hand, argued it should be reimbursed for
11.61% of the benefits it paid through the date of the equitable distribution. Thus,
the parties could not agree on the proper “valuation date.” And here’s why it matters:
after the date of the settlement agreement, Liberty Mutual paid over $300,000 in
benefits both to Lee and on his behalf. Under Lee’s interpretation of the statute,
Liberty Mutual would not be reimbursed its 11.61% of those benefits.
To resolve this dispute, Lee filed a motion for final judgment and for equitable
distribution in the trial court. Liberty Mutual then filed an affidavit informing the
trial court that, from the date of Lee’s settlement with the elevator operator to the
day it filed the affidavit, Liberty Mutual paid over $300,000 in workers’
3 compensation benefits. After a hearing on the motion, the trial court agreed with
Lee and found Liberty Mutual was only entitled to recover the agreed-upon
percentage of its lien as of the date of the settlement, rather than the date of the
equitable distribution; 2 thus, Liberty Mutual was not entitled to its 11.61% of the
$300,000 it paid between those dates. Liberty Mutual now challenges that
determination.
“We review the application of the workers’ compensation lien statute de novo
and any trial court findings of fact under the substantial competent evidence standard
of review.” Luscomb v. Liberty Mut. Ins. Co., 967 So. 2d 379, 380 (Fla. 3d DCA
2007); see also Boyle v. Samotin, 337 So. 3d 313, 317 (Fla. 2022) (“Our standard of
review is de novo for questions of statutory interpretation . . . .” (citing Lopez v. Hall,
233 So. 3d 451, 453 (Fla. 2018))).
On appeal, Liberty Mutual argues the trial court’s order violates section
440.39(3)(a) because the statute requires Liberty Mutual’s pro rata share to be
determined based on the full amount of “benefits paid or to be paid.” It argues Lee’s
suggestion that the date of settlement should be the valuation date finds no support
in the statute. We agree with Liberty Mutual.
2 The trial court also found that, going forward, Liberty Mutual was entitled to a future credit for any future benefits paid to Lee up to the amount of Lee’s net recovery, as required by the statute. Neither party has challenged that finding here. 4 “The ‘plain meaning of the statute is always the starting point in statutory
interpretation.’” Alachua Cnty. v. Watson, 333 So. 3d 162, 169 (Fla. 2022) (quoting
GTC, Inc. v. Edgar, 967 So. 2d 781, 785 (Fla. 2007)). While section 440.39(3)(a) is
lengthy and requires us to tease out a statutory formula, it is nonetheless clear and
unambiguous, and we simply apply it as written.
Broadly speaking, section 440.39(3)(a) entitles a workers’ compensation
carrier “to a lien on third-party settlement proceeds for both past workers’
compensation benefits paid and those to be paid in the future.” Volk v. Gallopo, 585
So. 2d 1163, 1164 (Fla. 4th DCA 1991) (citation omitted). Under the statute, that
lien is for “100 percent of what [the carrier] has paid and future benefits to be paid,”
§ 440.39(3)(a), but the statute “creates an equitable distribution formula to be applied
when,” as in this case, the employee can demonstrate to the court that he did not
recover the full value of damages sustained. Volk, 585 So. 2d at 1164–65. When
that happens, the statute provides that the “carrier shall recover from the judgment
or settlement, after costs and attorney’s fees incurred by the employee . . . 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 . . . .” § 440.39(3)(a), Fla. Stat. (2023) (emphasis added). 3 The
3 The relevant portion of the statute provides:
5 statute therefore requires the total amount of benefits paid by the carrier to be
factored into the formula, in order to determine the carrier’s lien amount.
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SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D2023-2377 Lower Tribunal No. 16-CA-001000 _____________________________
LIBERTY MUTUAL INSURANCE COMPANY,
Appellant, v. ROBERT A. LEE, ASCO SERVICES, INC., EMERSON NETWORK POWER SOLUTIONS, INC., ELECTRICAL RELIABILITY SERVICES, INC., THYSSENKRUPP ELEVATOR CORPORATION, and BRUCE ALEXSON, Appellees. _____________________________
Appeal from the Circuit Court for Lee County. Keith R. Kyle, Judge.
February 7, 2025
BROWNLEE, J.
Liberty Mutual Insurance Company appeals the trial court’s final judgment
determining its equitable distribution of a settlement agreement and deciding its lien
amount under our workers’ compensation law. Specifically, Liberty Mutual
challenges the trial court’s decision to consider only the benefits paid up to the date
of the settlement, rather than the full amount of benefits paid, when calculating its lien amount. Because the trial court’s ruling excluded certain benefits paid by
Liberty Mutual in contravention of the statutory language, we reverse.
Appellee Robert A. Lee entered an elevator one day on the ground floor of the
medical center where he worked. After the elevator began to ascend, it suddenly
came to an abrupt halt, stopped for a moment, and then plunged into a free fall. The
elevator bounced off the ground floor and stopped upon hitting the ground a second
time. Lee was injured in the accident.
At the time, Liberty Mutual was the workers’ compensation liability carrier
for Lee’s employer, and it began paying benefits both to Lee and on his behalf. Lee
eventually sued the elevator operator, and Liberty Mutual filed a lien on the case,
under section 440.39(3)(a), Florida Statutes. After that case settled, 1 Liberty Mutual
sought its pro rata share of the settlement amount for the benefits it paid. But by that
time, the lien had increased substantially, and a dispute arose as to the amount
Liberty Mutual was owed. That amount is determined by a specific formula set forth
in section 440.39(3)(a).
Liberty Mutual filed a motion for equitable distribution in the trial court to
resolve the dispute. After a hearing on that motion, the trial court ordered Lee and
Liberty Mutual to non-binding arbitration to determine the “full case value” of Lee’s
suit against the elevator operator, or, as the statute puts it, the “full value of damages
1 The terms of the settlement agreement are confidential. 2 sustained” by Lee, as this number must be plugged into the statutory formula to
calculate the lien amount. See § 440.39(3)(a), Fla. Stat.
Ultimately, the arbitrator determined the full value of damages Lee sustained,
and both parties accepted that determination. Then, armed with that critical piece of
the puzzle, Lee and Liberty Mutual sought to calculate Liberty Mutual’s
reimbursement amount. They agreed on several amounts to be used in the formula,
including that Liberty Mutual was entitled to 11.61% of the benefits paid as its
equitable distribution from the settlement proceeds. But then another dispute arose.
Lee took the position that Liberty Mutual should only be reimbursed for
11.61% of the benefits it paid through the date of Lee’s settlement with the elevator
operator. Liberty Mutual, on the other hand, argued it should be reimbursed for
11.61% of the benefits it paid through the date of the equitable distribution. Thus,
the parties could not agree on the proper “valuation date.” And here’s why it matters:
after the date of the settlement agreement, Liberty Mutual paid over $300,000 in
benefits both to Lee and on his behalf. Under Lee’s interpretation of the statute,
Liberty Mutual would not be reimbursed its 11.61% of those benefits.
To resolve this dispute, Lee filed a motion for final judgment and for equitable
distribution in the trial court. Liberty Mutual then filed an affidavit informing the
trial court that, from the date of Lee’s settlement with the elevator operator to the
day it filed the affidavit, Liberty Mutual paid over $300,000 in workers’
3 compensation benefits. After a hearing on the motion, the trial court agreed with
Lee and found Liberty Mutual was only entitled to recover the agreed-upon
percentage of its lien as of the date of the settlement, rather than the date of the
equitable distribution; 2 thus, Liberty Mutual was not entitled to its 11.61% of the
$300,000 it paid between those dates. Liberty Mutual now challenges that
determination.
“We review the application of the workers’ compensation lien statute de novo
and any trial court findings of fact under the substantial competent evidence standard
of review.” Luscomb v. Liberty Mut. Ins. Co., 967 So. 2d 379, 380 (Fla. 3d DCA
2007); see also Boyle v. Samotin, 337 So. 3d 313, 317 (Fla. 2022) (“Our standard of
review is de novo for questions of statutory interpretation . . . .” (citing Lopez v. Hall,
233 So. 3d 451, 453 (Fla. 2018))).
On appeal, Liberty Mutual argues the trial court’s order violates section
440.39(3)(a) because the statute requires Liberty Mutual’s pro rata share to be
determined based on the full amount of “benefits paid or to be paid.” It argues Lee’s
suggestion that the date of settlement should be the valuation date finds no support
in the statute. We agree with Liberty Mutual.
2 The trial court also found that, going forward, Liberty Mutual was entitled to a future credit for any future benefits paid to Lee up to the amount of Lee’s net recovery, as required by the statute. Neither party has challenged that finding here. 4 “The ‘plain meaning of the statute is always the starting point in statutory
interpretation.’” Alachua Cnty. v. Watson, 333 So. 3d 162, 169 (Fla. 2022) (quoting
GTC, Inc. v. Edgar, 967 So. 2d 781, 785 (Fla. 2007)). While section 440.39(3)(a) is
lengthy and requires us to tease out a statutory formula, it is nonetheless clear and
unambiguous, and we simply apply it as written.
Broadly speaking, section 440.39(3)(a) entitles a workers’ compensation
carrier “to a lien on third-party settlement proceeds for both past workers’
compensation benefits paid and those to be paid in the future.” Volk v. Gallopo, 585
So. 2d 1163, 1164 (Fla. 4th DCA 1991) (citation omitted). Under the statute, that
lien is for “100 percent of what [the carrier] has paid and future benefits to be paid,”
§ 440.39(3)(a), but the statute “creates an equitable distribution formula to be applied
when,” as in this case, the employee can demonstrate to the court that he did not
recover the full value of damages sustained. Volk, 585 So. 2d at 1164–65. When
that happens, the statute provides that the “carrier shall recover from the judgment
or settlement, after costs and attorney’s fees incurred by the employee . . . 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 . . . .” § 440.39(3)(a), Fla. Stat. (2023) (emphasis added). 3 The
3 The relevant portion of the statute provides:
5 statute therefore requires the total amount of benefits paid by the carrier to be
factored into the formula, in order to determine the carrier’s lien amount.
Although section 440.39(3)(a) does not identify a valuation date for
determining the amount of benefits paid—and we will not read such a date into the
statute—section 440.39(3)(a) is clear that Liberty Mutual is to be reimbursed its pro
rata share based on all benefits paid. Thus, the problem here is that the trial court’s
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 . . . . § 440.39(3)(a), Fla. Stat. (emphasis added).
6 failure to include the benefits Liberty Mutual paid in the 755 days between the date
of the settlement and the date of the equitable distribution resulted in the exclusion
of over $300,000 from the statutory formula. Nothing in the statute supports that
exclusion. In fact, the exclusion of those benefits contravenes the express directive
of section 440.39(3)(a)—that the carrier shall recover a percentage of what it has
paid. We find the trial court erred in calculating the statutory formula using only a
portion of the benefits paid.
Moreover, we agree with Liberty Mutual that section 440.39(3)(a) precludes
double recovery by injured employees who have recovered statutory benefits under
the workers’ compensation law but also have claims against responsible parties other
than the employer. The trial court’s order here permits such double recovery from
the date of the settlement to the date of the equitable distribution, creating a potential
windfall for Lee.
Finally, despite his argument throughout this case, Lee has seemingly
abandoned his claim that Liberty Mutual should be reimbursed only for benefits paid
through the date of the settlement agreement. At oral argument, Lee’s counsel
conceded Liberty Mutual was entitled to its pro rata share of the full amount of
benefits paid, including the benefits it paid between the date of the settlement
agreement and the date of the equitable distribution. That position cannot be squared
7 with Lee’s earlier argument that Liberty Mutual was not entitled to any
reimbursement for benefits paid during that 755-day period.
Given the applicable statutory language, we reverse the final judgment and
remand this matter for the trial court to recalculate the equitable distribution using
the total amount of benefits paid by Liberty Mutual.
REVERSED and REMANDED.
NARDELLA, J., and LAMBERT, B.D., Associate Judge, concur.
Michael B. Stevens, Shirley Jean McEachern, and Anne-Marie Dale, of Derrevere Stevens Black & Cozad, West Palm Beach, for Appellant.
Thomas E. Shepard and Alexander Brockmeyer, of Boyle, Leonard & Anderson, P.A., Fort Myers, for Appellee, Robert A. Lee.
No Appearance for Appellees, ASCO Services, Inc., Emerson Network Power Solutions, Inc., Electrical Reliability Services, Inc., Thyssenkrupp Elevator Corporation, and Bruce Alexson.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED