5 Fla. L. Weekly Supp. 619a
Insurance — Personal injury protection — Workers’ compensation — Third party actions — Attorney’s fees — Insured who was injured in automobile accident during course and scope of her employment and who settled bodily injury claim against tortfeasor is entitled to reimbursement from PIP carrier for amounts expended to resolve workers’ compensation lien — Pro rata share of attorney’s fees and costs is calculated by reference to total amount of attorney’s fees and costs expended by insured, not by reference to total amount of benefits paid by workers’ compensation carrier
ANN McDONOUGH, Plaintiff, v. REGAL INSURANCE COMPANY, Defendant. County Court for Pinellas County, Civil Division. Case No. 97-5896-SC-SPC. March 18, 1998. Karl B. Grube, Judge. Counsel: Dean W. Karikas, St. Petersburg, for Plaintiff. Ann O’Hern, St. Petersburg, for Defendant.
AMENDED ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS MATTER came to be heard upon the Plaintiff’s Motion for Summary Judgment. The Court, having considered the evidence and testimony presented and the argument of counsel, now finds and rules as follows:
1. Plaintiff was involved in an automobile accident on October 17, 1994, while in the course and scope of her employment. At the time of said accident, Plaintiff carried Personal Injury Protection coverage through the Defendant, Regal Insurance Company. Plaintiff was covered by workers’ compensation; thus she initially submitted her claim for medical expenses and indemnity benefits to her workers’ compensation carrier. The workers’ compensation carrier paid benefits totalling $4,719.13. After settling her bodily injury claim against the tortfeasor for $5,000.00, Plaintiff paid the workers’ compensation carrier the sum of $943.82 in full and final settlement of the workers’ compensation lien. The amount of attorney’s fees and costs resulting from the $5,000.00 settlement totalled $1,704.17. Both parties agree that the fees and costs represent 34% of the total settlement. After payment of the workers’ compensation lien, Plaintiff submitted a claim for personal injury protection benefits to the Defendant, Regal Insurance Company. Both parties agree that this was proper according to the decisions in Fortune Insurance Co. v. McGee, 571 So.2d 546 (Fla. 2nd DCA 1990) and Delehanty v. Coronet Insurance Company, 619 So.2d 990 (Fla. 2nd DCA 1993). These decisions reflect that a plaintiff’s personal injury protection carrier is required to reimburse the plaintiff the amount paid by plaintiff to resolve the workers’ compensation lien.
2. Florida Statute § 440.39(3)(a) (F.S. 1997) governs the issue of pro rata attorney’s fees and costs in workers’ compensation cases. That statute states in pertinent part:
“the employer or the insurance carrier . . . [may recover] their pro rata share for compensation and medical benefits paid or to be paid . . . 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.” Id.
3. The parties are in agreement that the first step in calculating the pro rata share of attorney’s fees and costs is to determine the ratio of the attorney’s fees and costs to the amount of the gross settlement that the Plaintiff received from the tortfeasor. In this case the Plaintiff settled with the tortfeasor for $5,000.00. Of that amount, attorney’s fees and costs totalled $1,704.17, or 34% of the total award ($1,704.17 is 34% of $5,000.00).
4. The conflict arises in determining the next step in the calculation. The Plaintiff argues that the pro rata share should be calculated by multiplying 34% by the total benefits paid out by the workers’ compensation carrier. In this case the workers’ compensation carrier paid out a total of $4,719.13 in benefits. The Plaintiff would have the court multiply this figure by 34% to arrive at the pro rata share of attorney’s fees and costs of $1,609.38. The Defendant, on the other hand, argues that the 34% should be multiplied by the total amount of attorney’s fees and costs paid by the Plaintiff; in this case the $1,704.17. Based on the Defendant’s argument the pro rata share of attorney’s fees and costs would be 34% of $1,704.17, or $579.42.
5. There are few cases that interpret § 440.39(3)(a) (F.S. 1997) of the Florida Statutes, but “the express statutory formula is clear: the employer’s “pro rata share” is simply defined as the amount equal to the percentage of the judgment which is for costs and attorney’s fees.” Brandt v. Phillips Petroleum Co., 511 So.2d 1070, 1073 (Fla. 3d DCA 1987). In Brandt, the Court found that the Defendant’s benefits lien should be reduced by 41.64% for costs. The claim settled by the Plaintiff and the third-party tortfeasor amounted to $150,000.00, of which $ 62,456.69 was attorney’s fees and costs; or 41.64%. This formula provides that the pro rata share of attorney’s fees and costs is calculated by multiplying the 34% and the total amount of attorney’s fees and costs paid by the Plaintiff from the settlement with the third-party tortfeasor; in this case, the $1,704.17.
6. Florida Statute § 440.39(3)(a) (F.S. 1997), states that the pro rata share is “of all court costs expended by the plaintiff . . .. ” In this case, that would amount to a pro rata share of the $1,704,17 paid by the Plaintiff. In the case of Johnson v. State of Florida, 143 So.2d 541 (Fla. 3d DCA 1962) the Court stated that “Under subsection (3) the carrier and the employee contribute their pro rata shares toward incurred attorney’s fees out of their respective awards.” Id. at 547. It is apparent from this language that the intent of the pro rata determination is to proportion the attorney’s fees and costs paid among the parties.
WHEREFORE, it is
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment be and the same is herewith granted in part and denied in part, as follows:
1. The pro rata share of attorney’s fees and costs provided for in Florida Statute § 440.39(3)(a) (F S. 1997) shall not be calculated by reference to the total amount of benefits paid by the workers’ compensation carrier.
2. The pro rata share of attorney’s fees and costs provided for in Florida Statute § 440.39(3)(a) (F.S. 1997) shall be calculated by reference to the total amount of attorney’s fees and costs expended by the Plaintiff. Therefore Plaintiff shall take judgment totalling $579.42 as the pro rata share of attorney’s fees and costs owing, plus interest.
3. Plaintiff shall draw and submit to this Court a final judgment in accordance with the ruling set forth above.
IT IS FURTHER ORDERED AND ADJUDGED that this Court will retain jurisdiction of this matter for a period of 60-days to entertain motions concerning taxation of fees and costs.
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