Liens - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. // Unlock Full Recovery: Using Subrogation Assignments to Your Advantage

Jeffrey P. Gale, P.A. — Wed, 10 Dec 2025 18:05:39 GMT

A core responsibility of lawyers representing clients with personal injury or property-damage claims is to maximize recovery. Conventional wisdom holds that recovery is limited to actual damages – the plaintiff cannot collect more than the loss suffered.

Florida law, however, provides a pathway to expand recovery when subrogation, reimbursement, or contribution rights exist.

In Despointes v. Florida Power Corporation, 2 So. 3d 360 (Fla. 2d DCA 2008), the insured had received $224,567.66 from her own insurer, CIGNA, for fire damage. Through an assignment of CIGNA’s subrogation rights, she was able to recover the same amount against a third party allegedly responsible for the loss caused by a defective surge protector. The trial court initially barred recovery, but the Second District reversed, noting that allowing the tortfeasor to avoid liability “because the victim was prudent enough to obtain insurance” would be unjust.

Assignments of subrogation or contribution rights are well-established under Florida law, as reflected in § 768.76(1), Fla. Stat., and cases like Robarts v. Diaco, 581 So. 2d 911 (Fla. 2d DCA 1991), where defendants assigned their rights of contribution to the plaintiff.

The key takeaway for practitioners: when a right of subrogation or reimbursement exists, consider obtaining an assignment. This strategy can unlock recovery beyond the client’s direct damages.

A word of caution: assignments often come at a cost. The assignor is relinquishing something of value, which may require negotiation, such as accepting a reduced settlement. In Despointes, while the opinion does not specify, the insured may have agreed to a lesser amount from CIGNA in exchange for the assignment.

By strategically leveraging subrogation or contribution assignments, plaintiffs can prevent tortfeasors from benefiting from the plaintiff’s foresight in obtaining insurance and potentially maximize overall recovery.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Jeffrey P. Gale, P.A. // Valuation Date for Workers’ Compensation Subrogation Lien

Jeffrey P. Gale, P.A. — Thu, 25 Sep 2025 18:51:26 GMT

Personal injury and workers’ compensation cases differ significantly in the remedies they offer and the parties they involve. It is not uncommon for an individual injured in the course of employment to also have a viable personal injury claim. Workers’ compensation cases are brought against the employer and its insurance carrier, whereas personal injury actions target the negligent third party responsible for the incident, including any entities that may be vicariously liable for their conduct.

One of the most significant distinctions between workers’ compensation and personal injury cases lies in the role of fault: workers’ compensation operates as a no-fault system, while personal injury claims require the injured party to prove that another’s negligence caused the harm. Because workers’ compensation operates as a no-fault system, benefits are typically provided from the outset of the claim. In contrast, personal injury cases often require lengthy litigation to establish fault, meaning compensation may not be received for months or even years.

Pursuant to Florida Statute § 440.39, when an employee or their dependents accept workers’ compensation benefits or initiate proceedings to obtain them, the employer—or its insurer—is subrogated to the rights of the employee or dependents against any third-party tortfeasor. This subrogation applies to the extent of compensation benefits paid or payable, as outlined in subsection (2).

This right of subrogation entitles the employer and its workers’ compensation insurer to reimbursement from any recovery the injured employee obtains—whether by judgment or settlement—from a third-party tortfeasor.

The employer and its workers’ compensation carrier rarely recover the full value of their lien. Florida Statute § 440.39(3)(a) sets forth the formula used to calculate the extent of their recovery. It calls for a pro rata determination. The Florida Supreme Court’s decision in Manfredo v. Employer’s Casualty Insurance Co. provides a clear and accessible explanation of how the statutory formula operates in practice.

In Liberty Mutual Insurance Company v. Robert A. Lee (Feb. 7, 2025), the issue concerned the proper “valuation date” for calculating the subrogation lien. Lee argued that Liberty Mutual was entitled to reimbursement of only 11.61% of the benefits it had paid through the date of his settlement with the elevator operator. Liberty Mutual, by contrast, maintained that it should be reimbursed for 11.61% of the benefits it paid through the date of the equitable distribution.

The valuation date was important in the Lee case because Liberty Mutual paid over $300,000 in benefits to Lee and on Lee’s behalf after the date of the settlement agreement.

Liberty Mutual argued that its position is supported by the plain language of section 440.39(3) providing that the lien applies to “benefits paid or to be paid.” Florida’s Sixth District Court of Appeal agreed.

The Court’s decision made a $34,830.00+ difference.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Jeffrey P. Gale, P.A. // Understanding Workers’ Compensation Liens and Uninsured Motorist Claims Under Florida Law

Jeffrey P. Gale, P.A. — Sun, 08 Jun 2025 19:36:52 GMT

It is not uncommon for employees to be injured in motor vehicle accidents while acting within the course and scope of their employment. Such incidents frequently implicate multiple layers of insurance coverage.

Regardless of fault, injured employees may be eligible for benefits including workers’ compensation, Personal Injury Protection (PIP), and health insurance (including Medicare). Workers’ compensation and PIP are considered primary over Medicare, meaning they must pay first. If Medicare does make a payment, it typically expects to be reimbursed from any subsequent workers’ compensation or personal injury recovery.

When an injured employee is not at fault, they may seek damages through a third-party civil action against the negligent driver and, if different, the vehicle’s owner. Recovery in these cases typically comes from the tortfeasor’s and owner’s bodily injury (BI) liability insurance or, if applicable, personal assets.

In many cases, however, the at-fault party either lacks BI coverage altogether or carries insufficient limits. Florida law addresses this risk through uninsured/underinsured motorist (UM/UIM) coverage, governed by § 627.727, Florida Statutes. This optional coverage is designed to fill the gap left by the inadequacy—or absence—of BI insurance.

Per § 627.727(1), the purpose of UM/UIM coverage is:

“…for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.”

The Workers’ Compensation Lien Under § 440.39

Section 440.39, Florida Statutes, grants workers’ compensation (WC) carriers an equitable lien on any judgment or settlement obtained by the injured worker from a third-party tortfeasor. This lien allows the carrier to recover benefits previously paid out, including indemnity and medical expenses.

However, critically, the WC lien does not attach to UM/UIM proceeds. Florida courts have addressed this distinction:

Volk v. Gallopo, 585 So. 2d 1163 (Fla. 4th DCA 1991): Held that a WC carrier cannot benefit from a UM recovery due to the plain language of § 440.39(3)(a), which excludes UM recoveries from lien applicability.
§ 627.727(1), Fla. Stat.: Explicitly states that UM coverage “shall not inure directly or indirectly to the benefit of any workers’ compensation … carrier.”

When BI and UIM Coverage Coexist: Procedural Mechanics

In claims involving both BI and UIM, procedural requirements under § 627.727(6)(a)-(b) govern how settlements must be handled:

(a) Notification Requirement

If the injured party agrees to settle with the liability insurer but the settlement won’t fully satisfy their claim (thereby triggering a UIM claim), they must notify all UIM carriers by certified or registered mail. The UIM carrier then has 30 days to either:

Authorize the settlement, or
Preserve subrogation rights under paragraph (b).

(b) Preservation of Subrogation Rights

If the UIM carrier elects to preserve subrogation, it must:

Pay the BI settlement amount to the injured party within 30 days.
Thereafter, the UIM carrier may pursue subrogation against the at-fault party and their liability carrier.

This mechanism ensures the UIM carrier can protect its reimbursement rights by preventing the injured party from releasing the tortfeasor from further liability.

When UM is BI

In Metrix South v. Rose, 758 So. 2d 1259 (Fla. 4th DCA 2000), the UIM carrier refused to authorize settlement of a $100,000 BI offer and instead paid that amount directly to the claimant to preserve subrogation rights. The workers’ compensation carrier claimed a lien on the payment.

The trial court ruled that the payment constituted UM benefits, thereby exempt from the lien under § 440.39. However, the Fourth DCA reversed, holding that the payment was the equivalent of a third-party recovery, making it subject to the WC lien:

“… the trial court erred in characterizing the $100,000 payment to appellees as UM benefits and not a judgment or settlement recovered by the employee.”

This decision illustrates the complexity that arises when UM and UIM coverage functions as a stand-in for third-party BI liability, particularly in lien determinations.

Conclusion

Understanding the relationship between workers’ compensation lien rights and UM/UIM insurance is essential in motor vehicle accident cases involving injured workers. While Florida law generally prohibits WC carriers from recovering UM/UIM proceeds, exceptions exist—especially where UIM payments substitute for BI coverage through statutory subrogation mechanisms.

Practitioners must closely evaluate the structure and source of all settlements to determine lien exposure under § 440.39, and comply with § 627.727’s procedural requirements when both BI and UIM are in play.

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Contact us at 305-758-4900 or by email (kgale@jeffgalelaw.com and jgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. // Difference Between Workers’ Compensation Lien and Medicare Lien in Death Cases

Jeffrey P. Gale, P.A. — Sun, 12 Nov 2023 20:11:36 GMT

A lien is a claim held by a party against the settlement or judgment in a personal injury or death case for reimbursement of damages it has paid in the case. This blog will discuss two types of liens commonly arising in death cases, the Medicare lien and the workers’ compensation lien.

Medicare pays medical expenses while both medical and indemnity (money) benefits are paid by the employer and its insurance carrier in Florida workers’ compensation cases. Each type is often paid in association with cases where the victim ends up dying.

42 CFR sec. 411.24 sets forth Medicare’s lien rights. Section 440.39, Florida Statutes covers the employer/carrier’s lien rights in workers’ compensation cases.

Section 786.21 of Florida’s Wrongful Death Act defines the type of benefits available in civil law wrongful death cases. Section 440.16 does this in the context of workers’ compensation cases. In some instances, a recovery under both laws is available for the same accident.

Under the Wrongful Death Act, the decedent’s estate and his or her survivors, as defined in section 768.18, may be compensated for various forms of damages. The estate’s recovery can be for non-economic damages such as medical expenses and loss of net accumulations, while survivors may recover non-economic damages such as loss of companionship, loss of protection, and mental pain and suffering.

The workers’ compensation death benefit available under section 440.16 is limited to $150,000 payable to the surviving spouse and dependent children in increments.

Medicare’s lien attachment is limited to the settlement or judgment proceeds recovered by the estate. It is not entitled to recover from the non-economic damages received by the survivors. Bradley vs. Sebelius, 621 F.3d 1330 (11^th Cir. 2010).

In contrast, even though it can be argued that the death benefit paid or payable to the spouse and dependents under 440.16 resembles non-economic damages, 440.39 nevertheless allows the employer and its workers’ compensation insurance carrier to recover up to the full amount paid. In pertinent part, subsection (2) provides as follows:

If the employee or his or her dependents [bold added] 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 [bold added] 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 [bold added] 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.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.