IN THE SUPREME COURT OF FLORIDA

CASE NO.: SC12-2450 S

OCEAN REEF CLUB, INC., a Florida corporation,

Petitioner,

v.

CHERRYE WILCZEWSKI and LAURA LEON,

Respondents.

RESPONDENTS' BRIEF ON JURISDICTION

BILLBROUGH & MARKS, P.A.By: G. Bart Billbrough100 Almeria Avenue, Suite 320Coral Gables, Florida 33134Email: bbillbrough@attyfla.comTel: (305) 442-2701Fax: (305) 442-2801

Counselfor Respondents

BILLBROUGH & MARKS, P.A.100 ALME1UA AVENUE - SUrrE 320 · CORAL GABLES, FLORIDA 33134 • TELEPHONE 305.442.2701 · FAX 305.442.2801

TABLEOFCONTENTS

Page

TableofContents .................................................. i

Table ofAuthorities ....................... .......................... ii

Introduction ....................................................... 1

Statementofthe CaseandFacts ....................................... 1

SummaryoftheArgument ........................................... 4

Argument ......................................................... 5

THEDECISIONBELOWDOESNOTCREATEABASISFOR JURISDICTION IN THIS COURT BECAUSETHERE IS NO DIRECT AND EXPRESS CONFLICTBETWEEN THE THIRD DISTRICT'S DECISION ANDTHE DECISIONS OF OTHER DISTRICT COURTS OFAPPEAL OR THIS COURT ON THE SAME ISSUE OFLAW.

Conclusion....................................................... 10

CertificateofService............................................... 11

CertificateofCompliance ........................................... 11

BILLBROUGH & MARKS, P.A.100 ALMEIUA AVENUE · SurrE 320 • CORAL GABLEs, FLORIDA 33134 · TELEPHONE 305.442.2701 · FAX 305.442.2801

TABLE OF AUTHORITIES

Cases Page

Byerley v. Citrus Publ'g, Inc.,725 So.2d 1230 (Fla. 5th DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Elliott v. Dugger,579 So.2d 827 (Fla. 1st DCA 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Florida Power & Light v. Bell,113So.697(Fla.1959)......................................... 6

Jenkins v. State,385 So.2d 1356 (Fla. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Mena v. JI.L. Constr. Group Corp.,79 So.3d 219 (Fla. 4th DCA 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Quality Shell Homes & Supply Co., Inc. v. Roley,186So.2d837(Fla. lstDCA 1966). ............................ 8,9

Schroeder v. Peoplease Corp.,18 So.3d 1165(Fla. 1stDCA2009) ............................. 8,9

Timmeny v. Tropical Botanicals Corp.,615 So.2d 811 (Fla. 1st DCA 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Tractor Supply Co. v. Kent,966 So.2d 978 (Fla. 5th DCA 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Rules and Statutes

Fla. R. App. P. 9.030(a)(2)(A)(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 10

Section440.11(1)(a),Fla.Stat. ....................................... 3

Section440.185(2),Fla.Stat. ..............................3,4,6,7,8,10

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INTRODUCTION

The Petitioner, Ocean ReefClub, Inc., seeks discretionary review ofthe Third

District's opinion affirming the trial court's denial ofPetitioner's motion for summary

judgment on the basis of workers' compensation tort immunity. Fla. R. App. P.

9.030(a)(2)(A)(iv).

The Petitioner, Ocean ReefClub, Inc., a Florida corporation, was the defendant

in the trial court and the appellant in the Third District. In this brief, it is referred to

as Petitioner or as Ocean Reef.

The Respondents, Cherrye Wilczewski and Laura Leon, were plaintiffs in the

trial court and appellees in the Third District. In this brief, they are referred to as

Respondents or as Wilczewski and Leon.

References to the Petitioner's appendix, which is comprised of the Third

District's opinion, will be designated by the letter "A" and the appropriate page

number.

STATEMENT OF THE CASE AND FACTS

Both Wilczewski and Leon commenced civil tort actions for damages against

Ocean Reefalleging health issues that required medical treatment and hospitalization

as a result ofexposure to chemical fumes during their employment with Ocean Reef.

A2. According to both Wilczewski and Leon, they notified their supervisor of their

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health issues during their employment with Ocean Reef. A2. However, Ocean Reef's

workers' compensation carrier was not notified about Wilczewski and Leon's

possible claims for benefits during their employment. A2. Instead, Ocean Reef

notified its workers' compensation carrier about the possible claims after Wilczewski

and Leon filed their respective lawsuits, when they were no longer employed by

Ocean Reef. A2. Upon notification from Ocean Reef, the workers' compensation

carrier denied the claims on the basis that Wilczewski and Leon's health issues did

not occur in the course and scope of employment. A2. Moreover, the workers'

compensation carrier denied the claims due to running of the statute of limitations.

A2.

In response to Wilczewski and Leon's lawsuits, Ocean Reef moved for

summary judgment. A3. When moving for summary judgment, Ocean Reef

acknowledged that Wilczewski and Leon's health issues were work-related. A3. As

such, Ocean Reef argued that it was immune from suit due to workers' compensation

immunity. A3. At the hearing on Ocean Reef's motion for summary judgment,

Ocean Reef conceded it had received notice from Wilczewski and Leon about their

injuries, but argued that summary judgment on workers' compensation immunity

should be entered in its favor because Wilczewski and Leon did not file claims for

benefits with Ocean Reef's workers' compensation carrier. A3-4. The trial court

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denied Ocean Reef's motion for summary judgment, ruling that workers'

compensation immunity was not available as a matter of law. A3.

In its appeal to the Third District, Ocean Reefraised the same argument it had

made when moving for summary judgment - that workers' compensation immunity

under Section 440.11(1)(a), Fla. Stat., bars a negligence suit by Wilczewski and

Leon. A3. Affirming the trial court's ruling, the Third District found that the record

substantiated Wilczewski and Leon's claims about notifying their supervisor oftheir

health issues, and Ocean Reef conceded it had such knowledge, but had failed to

notify its carrier. A4. Based on Ocean Reef's knowledge ofand failure to report the

claims, the Third District found that Ocean Reef could not subsequently claim

workers' compensation immunity as a result ofWilczewski and Leon's failure to file

claims for benefits with the carrier. A4. Indeed, by shirking its statutory duty under

Section 440.185(2), Fla. Stat., to notify its carrier, the Third District found that Ocean

Reef was estopped from claiming tort immunity in Wilczewski and Leon's civil

actions for damages. A4-6.

According to the Third District, Ocean Reef waited to notify the carrier until

Wilczewski and Leon were no longer in its employ and once notified, the carrier

denied the claims because the alleged health issues did not occur in the course and

scope of employment and were time barred. A6. The Third District found Ocean

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Reef's assertion ofworkers' compensation immunity clearly irreconcilable with the

carrier's reason for denial, which was "imputed" to Ocean Reef. A6. In other words,

Ocean Reefcould not on the one hand deny that Wilczewski and Leon's health issues

were work-related, as reflected in the carrier's denial of coverage, while on the other

hand suggest that Wilczewski and Leon's health issues were work-related in order to

assert the workers' compensation tort immunity defense. A6-7.

After motions for rehearing and rehearing en banc were denied in the Third

District, A31, this discretionary proceeding ensued.

SUMMARY OF THE ARGUMENT

This Court's conflict jurisdiction is based not upon a party's contention, but

rather is based upon the question of whether a district court's decision is in express

and direct conflict on the same issue oflaw. There is no direct and express conflict

with another decision of another district court of appeal or this Court on the same

question of law. The cases cited that supposedly conflict with the Third District's

opinion below do not involve the same question of law and are not based on the same

set of facts, which defeats conflict jurisdiction in this Court.

The legal issue in our case was whether a statutory failure to report a known

and noticed employee workplace injury, in violation of the employer's duties under

Section 440.185(2), Fla. Stat., which operated to foreclosure administrative benefits,

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precluded an employer from thereafter invoking workers' compensation immunity.

Ours is the only case which has ever squarely addressed this issue and no other case

has even touched upon the specific issue of law involved. As such, there are no other

cases which can stand in direct and express conflict with our case on the same point

of law so as to create conflict jurisdiction.

ARGUMENT

THE DECISIONBELOWDOES NOT CREATE A BASISFOR JURISDICTION IN THIS COURT BECAUSETHERE IS NO DIRECT AND EXPRESS CONFLICTBETWEEN THE THIRD DISTRICT'S DECISION ANDTHE DECISIONS OF OTHER DISTRICT COURTS OFAPPEAL OR THIS COURT ON THE SAME ISSUE OFLAW.

Pursuant to Fla. R. App. P. 9.030(a)(2)(A)(iv), this Court has discretionary

jurisdiction to review "decisions ofthe district courts ofappeal that . . . expressly and

directly conflict with a decision ofanother district court of appeal or of the supreme

court on the same issue of law."' The situations justifying the invocation of

jurisdiction to review district court decisions because ofalleged conflicts are: (1)the

announcement of a rule of law which conflicts with a rule previously announced by

this or another court, or (2) the application of a rule of law to produce a different

result in a case which involves substantially the same controlling facts as a prior,

' The standard of appellate review is accordingly de novo.

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allegedly conflicting case. Nielsen v. City ofSarasota, 117 So.2d 731 (Fla. 1960).

Under the first situation, the facts are immaterial. It is the announcement of a

conflicting rule of law that conveys jurisdiction to review the decisions. Under the

second situation, the controlling facts become vital and this Court's jurisdiction may

be asserted only where the district court has applied a recognized rule of law to reach

a conflicting conclusion in a case involving substantially the same controlling facts

as were involved in allegedly conflicting prior decisions. See Florida Power & Light

Co. v. Bell, 113 So. 697 (Fla. 1959).2 In this case, we have neither situation.

In the instant case, an employer with actual notice and knowledge ofemployee

injuries failed to notify its workers' compensation carrier of those injuries, in

violation of Section 440.185(2), Fla. Stat. When a civil lawsuit was filed, the

employer then notified the workers' compensation carrier, which denied coverage on

the grounds that there had been no workplace injury and because the statute of

limitation had run. The employer nonetheless sought to defeat the employee claims

on the basis of workers' compensation immunity. "[B]ased on the facts of these

cases", A3, the Third District found Ocean Reefwas estopped from invoking such a

defense.

The first case cited as a purported basis for conflict is Timmeny v. Tropical

2 To be "express", the conflict must be present "in an express manner." Jenkinsv. State, 385 So.2d 1356, 1359 (Fla. 1980).

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Botanicals Corp., 615 So.2d 811 (Fla. 1st DCA 1993). The Timmeny court held that

where the employer/carrier did not afford adequate notice to the claimant of a

possible entitlement to disability benefits during the limitation period, the E/C was

estopped from asserting the statute of limitation defense in the workers'

compensation case until the claimant was first notified that his condition was

compensable. Timmeny, 615 So.2d at 182.

Timmeny is a workers' compensation case involving a statute of limitation

issue, not a civil tort case involving workers' compensation immunity. Timmeny's

holding focuses on how a statute of limitations is applied, and the instant case

involves whether a workers' compensation immunity defense can be equitably

asserted where the employer failed to comply with its statutory obligations for a

known and noticed employee injury and workers' compensation benefits are no

longer available. There is no express and direct conflict between our case and

Timmeny because they considered different points oflaw, involved different holdings,

and the issues arose under very different factual circumstances.3

3 This likewise addresses the citation of the cases found in the Petitioner'sjurisdictional brief in footnotes 4 and 5 on page 12. Each of these cases areworkers' compensation cases dealing with the appropriate application of a statuteof limitation, not a civil case involving estoppel to assert workers' compensationimmunity. Neither Timmeny nor the cases cited in the footnote even addressed thelegal issue here -that failure to comply with Section 440.185(2)can result in a lossof tort immunity.

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Next, Ocean Reefcites Mena v. J.1.L. Constr. Group Corp., 79 So.3d 219 (Fla.

4th DCA 2012); Tractor Supply Co. v. Kent, 966 So.2d 978 (Fla. 5th DCA 2007);

Byerley v. Citrus Publishing, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999); Quality

Shell Homes & Supply Co. v. Roley, 186 So.2d 837 (Fla. 1st DCA 1966); Elliott v.

Dugger, 579 So.2d 827 (Fla. 1st DCA 1991); and Schroeder v. Peoplease Corp., 18

So.3d 1165 (Fla. 1st DCA 2009), as a basis for conflict jurisdiction. The Petitioner's

argument is that the estoppel in each of these cases was predicated on the fact that

there had been a prior denial of workers' compensation benefits in the comp arena

and then a conflicting position taken in the subsequent civil litigation regarding

availability ofsuch benefits. Since there had never been a compensation court denial

of benefits, Ocean Reef argues, there can be no estoppel and the Third District's

opinion conflicts with those cited holdings.

Each ofPetitioner's cited cases arose from an existing workers' compensation

claim being denied, and the employer then invoking the availability of workers'

compensation benefits as a defense to a subsequent civil case. Not one of the cited

cases involved the same facts as ours nor addressed the legal issue in our case - the

legal effect ofthe employer's failure to comply with the statutory notice requirements

found in Section 440.185(2), Fla. Stat. Not one ofPetitioner's cited cases involved

a breach ofthis statutory duty to report known and noticed workplace injuries and the

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legal effect of such conduct on an affirmative defense of workers' compensation

immunity.4

This second conflict argument is remarkably misleading because no workers'

compensation proceedings ever occurred because no notice was ever provided to the

employees about their rights. The factual predicate for our case's holding is that

Ocean Reef was on actual notice of a workplace injury; violated its statutory

obligation to report it to the carrier upon that notice; submitted the claim to its carrier

upon the civil suits; and received a denial ofworkers' compensation benefits because

the injuries were not related to employment and because the statute of limitations had

run. Despite this, Ocean Reef asserted workers' compensation immunity, which the

Third District rejected due to the failure to comply with the notice statute, which

precluded benefits to the Respondents. Neither Mena, Tractor Supply, Byerley,

Quality Shell, Elliott, nor Schroeder involved such a failure or a discussion of the

legal ramifications of that failure.

This Court's conflict jurisdiction is based not upon a party's contentions, but

rather is based upon the question ofwhether a district court's decision is in express

* In our case, the issue was whether workers' compensation immunity could beinvoked when workers' compensation benefits were unavailable due to thestatutory violation by the employer, and the legal import of the employer'sinconsistent assertion ofworkers' compensation immunity as a defense in the civilproceedings.

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and direct conflict on the same issue of law. The legal issue in our case was whether

a statutory failure to report a known and noticed employee workplace injury, in

violation of the employer's duties under Section 440.185(2), Fla. Stat., which

operated to foreclosure administrative benefits, precluded an employer from thereafter

invoking workers' compensation immunity. Ours is the only case which has ever

addressed this issue and no other case has even touched upon the issue of law

involved. As such, there are no other cases which can stand in direct and express

conflict with our case on the same point of law so as to create conflict jurisdiction.

CONCLUSION

Since the instant case does not expressly and directly conflict with the cases

cited by Ocean Reef, this Court does not have discretionary jurisdiction under Fla. R.

App. P. 9.030(a)(2)(A)(iv) to review this matter. As such, this Court should deny

Ocean Reef's request for this Court to accept jurisdiction to review the Third

District's decision in this case.

BILLBROUGH & MARKS, P.A.Attorneys for Respondents100 Almeria Avenue, Suite 320Coral Gables, Florida 33134Tel: (305) 442-270Fax: (305) 42-28

By: G. Êart Billb uFlorida Bar .: 34261

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy hereofhas been served by email this 16* day

of January, 2013 upon: Raul De La Heria, Esq., raul@delaheria.com, De La Heria

& Associates, P.A., 2100 Coral Way, Suite 500, Miami, FL 33145; Lawrence J.

McGuinness, Esq., ljmpalaw@comcast.net, Lawrence J. McGuinness, P.A., 1627

S.W. 37* Avenue, Suite 100, Miami, FL 33145; Pamela A. Chamberlin, Esq.,

pchamberlin@mitrani.com, Mitrani, Rynor Adamsky & Toland, P.A., 2200 SunTrust

International Center, One Southeast Third Avenue, Miami, FL 33131 and Elena B.

Goodman, Esq., egoodman@mitrani.com, Mitrani, Rynor, Adamsky & Toland, P.A.,

2400 North Commerce Parkway, Suite 302, Weston, FL 33326.

By:G. Bart Billbr ug

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing answer brief was typed in Times New

Roman 14pt.

By:G. Bart Billbrou

L:\7979-000840\SC\B\RospondentsBriefonJurisdiction01-15-13002.wpd

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