Jersey Insurance Co. of New York v. Cuttriss

PER CURIAM. The sole question on this appeal is whether a compensation carrier has the exclusive right, in the second year after the accrual of a cause of action, to institute an action against a third party tort feasor pursuant to § 440.39, Fla.Stat., F.S.A. We reject this argument and hold that in the second year the injured employee and the carrier have concurrent rights against a third party tort feasor. But, the right to proceed against the tort feasor is limited to the one who files his cause of action first. Home Indemnity Company v. McAdams, Fla. App. 1962, 139 So.2d 433; Zurich Insurance Company v. Renton, Fla. App. 1966, 189 So.2d 492. Therefore, we find no error in the trial court’s orders here under review. Affirmed.