Allen v. Carman's Estate, No. 41352

CourtUnited States State Supreme Court of Florida
Writing for the CourtMcCAIN; CARLTON
Citation281 So.2d 317
PartiesMrs. John W. ALLEN, Appellant, v. The ESTATE of Charles Francis CARMAN; Mrs. Sylvia Carman, Executrix, et al., Appellees.
Decision Date31 July 1973
Docket NumberNo. 41352

Page 317

281 So.2d 317
Mrs. John W. ALLEN, Appellant,
v.
The ESTATE of Charles Francis CARMAN; Mrs. Sylvia Carman, Executrix, et al., Appellees.
No. 41352.
Supreme Court of Florida.
July 31, 1973.

Page 318

Warren A. Rosser and Eugene R. Kiser, for appellant.

James A. Smith, and Daniel Draper, Jr., Wicker, Smith, Pyszka, Blomqvist & Davant, Miami, for appellees.

McCAIN, Justice.

Pursuant to Rule 4.61, F.A.R., 32 F.S.A., this case is before us on certificate from the United States Court of Appeals, Fifth Circuit, reported at 446 F.2d 1276 (1971), in an appeal from a decision of the United States District Court, Southern District of Florida, granting summary judgment for defendant in a wrongful death action.

The certifying court has furnished us with the following statement of facts and issues in the cause:

'In December 1967 Charles Francis Carman, a painting contractor, owned and operated the Glaze Coating Company from his home in Lithonia, Georgia. He employed John W. Allen as a painter. 3 On December 28, 1967, while

both men were living and working in Georgia, Carman secured a workmen's compensation insurance policy written by the Hartford Accident and Indemnity

Page 319

Company and accepted by Carman in Georgia. This policy was in effect on August 26, 1968, the date of the airplane crash which is the subject of this suit.

'In June 1968 Carman moved to Sarasota, Florida where he continued to operate his painting business. Allen also moved to Florida 4 and was working for

Carman in Florida during the week immediately preceding the accident. 5 Although

Allen had previously driven his own truck to the job site at Live Oak, Florida from his home in Sarasota, upon returning to Sarasota he had left the truck with Mrs. Allen for repairs.

'On August 26, 1968 an aircraft owned and operated by Carman and carrying Allen as its only other occupant crashed shortly after take off from the airport at Bradenton, Florida. 6 Both

men were killed. At the time of the crash, in addition to the workmen's compensation policy, there was in effect an Aircraft Legal Liability Policy written by the Ranger Insurance Company covering Carman.

'Shortly after the crash Mrs. Allen moved to her parents' home in North Carolina. Thereafter Hartford Accident and Indemnity Company made voluntary payments to her totaling approximately $4500 during the period December 12, 1968 to March 1970, at which time Mrs. Allen notified the company that she would not accept further payments. She retained all payments made up to that time. She never filed a claim with the Florida Industrial Commission for workmen's compensation benefits and neither requested nor received a hearing before the Commission. The Commission has made no award to Mrs. Allen.

'On November 5, 1969 Mrs. Allen filed suit in the United States District Court for the Southern District of Florida for the wrongful death of her husband against the estate of Carman and his executrix, alleging that death was proximately caused by the negligence of Carman as pilot of the aricraft. Ranger Insurance Company intervened as a defendant and asserted as a defense the exclusivity of the workmen's compensation remedy as a bar to Mrs. Allen's wrongful death action. Ranger also defended on the additional ground that an 'employee exclusion' provision . . . of its policy excluded coverage of Allen in any event. Its motion to add Hartford Accident and Indemnity Company as a party defendant was denied.

'The plaintiff moved for partial summary judgment, claiming that the Florida Workmen's Compensation Law was inapplicable because Carman did not have a minimum of three employees and had posted no notice of an intention to cover an excluded employee as required by 15 F.S.A. § 440.04(2). . . . The plaintiff also contended that the 'employee exclusion' provision of the Ranger policy was inapplicable because Allen was not within the scope of his employment . . . at the time of the accident, that the airplane transportation had been furnished as a matter of convenience rather than as part of the employment contract, and that the policy's definition of 'passenger' did not exclude coverage of those employees who were neither pilot nor crew.

'The defendants and intervenor also filed a motion for summary judgment, asserting that the exclusive remedy of workmen's compensation barred the suit

Page 320

under 15 F.S.A. § 440.11 and that § 440.04(3) . . . dispensed with the requirement that an employer post notice that he had waived his exemption not to come within the Workmen's Compensation Law. 11

'. . .

'The District Court denied the plaintiff's motions but granted defendants' motion for summary judgment, and this appeal followed.

'3. Questions to be Certified

'1. (a) Under Florida law may an employer with only one employee invoke the defense of exclusivity of workmen's compensation?

(b) If the answer to (a) is in the affirmative, may the employer assert the defense of exclusivity of workmen's compensation when

'(i) the employer has secured a valid workmen's compensation policy covering his one employee, but

'(ii) when the employer has not posted notice of his intention to cover his one employee?

'(c) If posting of notice is required for the defense of exclusivity, upon whom does the burden of proof rest--employer or employee--to establish posting?

'2. Assuming that the facts warrant a finding that the airplane was being used to transport Carman and Allen to the Live Oak job site or to some other job site or prospective job site, was Allen's death sustained in the course of his employment? 12

'3. In order for a workmen's compensation policy written in Georgia to be valid under the Florida Workmen's Compensation Law, need it be endorsed or otherwise approved by (i) the insurer, (ii) the Florida Industrial Commission or (iii) both?

'4. Does the definition of 'passenger' in the Ranger liability policy exclude coverage of those employees of the insured who are neither pilot nor crew?

'. . .'

We will consider these issues in the order certified. With respect to the defense of exclusivity (Question 1(a)), it is the position of the appellant, Mrs. Allen, that the Florida Workmen's Compensation Law does not provide any procedure whereby an employer with only one employee, who would otherwise be exempt from the operation of Chapter 440, may accomplish a waiver of such exemption and elect to come within the coverage of the statute. We disagree.

Clearly, an employer with one employee is normally outside the scope of the Workmen's Compensation Law. 1 Fla.Stat. § 440.02(1)(b)(2) F.S.A. covers this point expressly by defining the term 'employment' for purposes of the Act to include, 'All private employments in which three or more employees are employed by the same employer'.

Page 321

However, by taking either of the steps contemplated by Fla.Stat. § 440.04, F.S.A., an otherwise exempt employer may elect to waive his exemption and place himself within the purview of the Act. At the time of the accident which is the subject of this suit (December 28, 1967), Fla.Stat. § 440.04, F.S.A., styled 'Waiver of Exemption', contained the following provisions: 2

'440.04 Waiver of exemption.--

'(1) An employer or employee who has exempted himself by proper notice from the operation of this chapter may at any time waive such exemption and thereby accept the provisions of this chapter by giving notice as provided in § 440.05.

'(2) Every employer having in his employment any employee not included in the definition 'employee' or excluded or exempted from the operation of this chapter may at any time waive such exclusion or exemption and accept the provisions of this chapter by giving notice thereof as provided in § 440.05, and by so doing be as fully protected and covered by the provisions of this chapter as if such exclusion or exemption had not been contained herein.

'(3) When any policy or contract of insurance specifically secures the benefits of this chapter to any person not included in the definition of 'employee' or whose services are not included in the definition of 'employment' or who is otherwise excluded or exempted from the operation of this chapter, the acceptance of such policy or contract of insurance by the insured and the writing of same by the carrier shall constitute a waiver of such exclusion or exemption and...

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19 practice notes
  • McClintock, In re, No. 75-4235
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 19, 1977
    ...answers to certification, 5 Cir. 1972, 467 F.2d 447; Allen v. Estate of Carman, 5 Cir. 1971, 446 F.2d 1276, on certification, Fla., 1973, 281 So.2d 317, on receipt of answers to certification, 5 Cir. 1973, 486 F.2d 490; A. R. Moyer, Inc., v. Graham, 5 Cir. 1971, 443 F.2d 434, on certificati......
  • Barnes v. Atlantic & Pac. Life Ins. Co. of America, No. 73-4032
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 16, 1975
    ...777, 779, n. 5, on rehearing, 1974, 491 F.2d 973; Allen v. Estate of Carman, 5 Cir., 1971, 446 F.2d 1276, on certification, Fla., 1973, 281 So.2d 317, on receipt of answers to certification, 5 Cir., 1973, 486 F.2d 490; National Education Association, Inc. v. Lee County Board of Public Instr......
  • Coastal Petroleum Co. v. SECRETARY OF THE ARMY OF US, No. 71-2589.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 29, 1974
    ...to handle factual matters as witness its most recent opinion in response to our certification. Allen v. Estate of Carman, Fla., 1973, 281 So.2d 317 in response to certification, 5 Cir., 1971, 446 F.2d 1276 and our opinion after certification, 5 Cir., 1973, 486 F.2d 490, p. 491 as to the que......
  • Kessler v. Pennsylvania Nat. Mut. Cas. Ins. Co., No. 74--2021
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 5, 1976
    ...489 F.2d 777, on rehearing, 1974, 491 F.2d 973; Allen v. Estate of Carman, 5 Cir., 1971, 446 F.2d 1276, on certification, Fla., 1973, 281 So.2d 317, on receipt of answers to certification, 5 Cir., 1973, 486 F.2d 490; National Education Association, Inc. v. Lee County Board of Public Instruc......
  • Request a trial to view additional results
19 cases
  • McClintock, In re, No. 75-4235
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 19, 1977
    ...answers to certification, 5 Cir. 1972, 467 F.2d 447; Allen v. Estate of Carman, 5 Cir. 1971, 446 F.2d 1276, on certification, Fla., 1973, 281 So.2d 317, on receipt of answers to certification, 5 Cir. 1973, 486 F.2d 490; A. R. Moyer, Inc., v. Graham, 5 Cir. 1971, 443 F.2d 434, on certificati......
  • Barnes v. Atlantic & Pac. Life Ins. Co. of America, No. 73-4032
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 16, 1975
    ...777, 779, n. 5, on rehearing, 1974, 491 F.2d 973; Allen v. Estate of Carman, 5 Cir., 1971, 446 F.2d 1276, on certification, Fla., 1973, 281 So.2d 317, on receipt of answers to certification, 5 Cir., 1973, 486 F.2d 490; National Education Association, Inc. v. Lee County Board of Public Instr......
  • Coastal Petroleum Co. v. SECRETARY OF THE ARMY OF US, No. 71-2589.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 29, 1974
    ...to handle factual matters as witness its most recent opinion in response to our certification. Allen v. Estate of Carman, Fla., 1973, 281 So.2d 317 in response to certification, 5 Cir., 1971, 446 F.2d 1276 and our opinion after certification, 5 Cir., 1973, 486 F.2d 490, p. 491 as to the que......
  • Kessler v. Pennsylvania Nat. Mut. Cas. Ins. Co., No. 74--2021
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 5, 1976
    ...489 F.2d 777, on rehearing, 1974, 491 F.2d 973; Allen v. Estate of Carman, 5 Cir., 1971, 446 F.2d 1276, on certification, Fla., 1973, 281 So.2d 317, on receipt of answers to certification, 5 Cir., 1973, 486 F.2d 490; National Education Association, Inc. v. Lee County Board of Public Instruc......
  • Request a trial to view additional results

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