Bend v. Shamrock Serv., CASE NO. 1D10-0019

CourtCourt of Appeal of Florida (US)
Writing for the CourtROWE, J.
Docket Number CASE NO. 1D10-0019
Decision Date28 February 2011

ROBERT J. BEND, JR., Appellant,

CASE NO. 1D10-0019


Opinion filed February 28, 2011
Date of Accident: January 15, 2008.


An appeal from an order of the Judge of Compensation Claims. Paul T. Terlizzese, Judge.

Barbara B. Wagner of Wagenheim & Wagner, P.A., Fort Lauderdale, and Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.

L. Barry Keyfetz of L. Barry Keyfetz, P.A., Miami, for Florida Workers Advocates and The Workers Injury Law & Advocacy Group, Amicus Curiae in support of Appellant.

David D. Hershel and Samuel Dean Bunton of the Department of Financial Services, Tallahassee, for the State of Florida, Department of Financial Services, Division of Workers' Compensation, Amicus Curiae in support of Appellant.

Roy D. Wasson of Wasson and Associates, Chartered, Miami, for the Florida Justice Association, Amicus Curiae in support of Appellant.

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Arthur J. England, Jr. and Daniel M. Samson of Greenberg Traurig, P.A., Miami, and William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellee.

Laura Pearce of the Florida Association of Insurance Agents, Tallahassee, for the Florida Association of Insurance Agents, Amicus Curiae in support of Appellee.


In this workers' compensation appeal, Robert Bend, Jr. (Claimant) challenges an order of the Judge of Compensation Claims (JCC) that voids ab initio the Employer's contract for workers' compensation insurance with Zenith Insurance Company (Zenith), based on misrepresentations made by the Employer to Zenith, either during or shortly after the completion of an application for workers' compensation coverage. Because the JCC acted outside of his limited statutory authority in voiding this policy, and because neither the law nor competent substantial evidence supports the JCC's alternative finding that Claimant was not employed by the Employer but, rather, by another (but otherwise legally unidentifiable) separate "entity," we reverse and remand for additional proceedings to determine the extent of workers' compensation benefits due Claimant.


On January 15, 2008, Claimant was involved in a high-speed automobile accident while driving a truck owned by the Employer (Amar Prakash doing

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business as Shamrock Services). At the time of the accident, Claimant was en route to a painting job (contracted for by the Employer) at a post office in Cocoa Beach, Florida. After receiving notice of Claimant's accident and discovering the multi-faceted nature of the Employer's business which contrasted with the Employer's answers to questions posed in the Employer's application for insurance wherein the Employer described his business as a lawn maintenance service with five employees (and no independent contractors/subcontractors)--Zenith cancelled the workers' compensation policy. At the time of cancellation, the policy had been in effect for over three years. Zenith denied Claimant's claims for workers' compensation benefits on the basis that Claimant was not the Employer's employee but, rather, an independent contractor. Additionally, Zenith asserted that Claimant should be denied recovery based on misrepresentations made by the Employer in the application process and/or based on the Employer's failure to regularly submit documentation and reports to Zenith, as required by the Workers' Compensation Law. At trial, Zenith introduced evidence establishing that the type of painting work performed by Claimant, an activity never disclosed to Zenith before the accident, was properly classified as construction work, and Zenith's automated underwriting system (intended for lower premium policies only) would not have issued a policy had the Employer disclosed the true nature of his business

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at the time of application. The Employer was neither represented nor in attendance at the workers' compensation hearing.

Findings and Conclusions of JCC

The JCC found that Claimant was an "independent contractor or subcontractor for painting activities," and that the painting work Claimant performed for the Employer was a type of service within the "construction industry." This finding, which was not contested on appeal, eliminates any legal significance in the distinction between an employee and an independent contractor under the Workers' Compensation Law. See §§ 440.02(15)(c)1.-4., Fla. Stat. (2007) (defining employee to include independent contractors and subcontractors performing services within the construction industry); 440.10(1)(b), Fla. Stat. (2007) (providing coverage for uninsured subcontractors). The JCC further concluded that, because of the Employer's multiple material misrepresentations relating to the nature of his business and his business activities, the Zenith policy was void ab initio under section 627.409(1)(a), Florida Statutes (2007), thereby precluding Claimant from recovering benefits under the policy. In an oral ruling on the record, specifically incorporated into the order on appeal, the JCC found, "Shamrock Services probably should have been a Shamrock lawn service and also a separate Shamrock paint service and also perhaps a separate Shamrock property management and parking lot Service, and perhaps even a separate Shamrock deck-

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building service," and "Shamrock paint services didn't exist and it should have." Nevertheless, in an alternative finding in the order, the JCC found that Claimant was employed "through a separate statewide business entity being run by the Employer that provided commercial painting services," not the entity insured by Zenith. This appeal follows.


We begin our analysis by asserting the necessary and oft-repeated premise that workers' compensation is purely a creature of statute, and all rights and liabilities under the system are established by chapter 440, Florida Statutes. See, e.g., Jackson v. Computer Science Raytheon, 36 So. 3d 754, 756 (Fla. 1st DCA 2010). A JCC has only those powers expressly provided by statute and, conversely, has no jurisdiction or authority beyond that which is specifically conferred by statute and a court may not read into chapter 440 authority not granted to the JCCs. See, e.g., McArthur v. Mental Health Care, Inc., 35 So. 3d 105, 107 (Fla. 1st DCA 2010). Significantly, nothing in chapter 440 allows a JCC to provide the remedy of voiding a policy ab initio; rather, a review of the comprehensive scheme contained within chapter 440 indicates the contrary.

The JCC's Duties and Limitations

A JCC has the authority to determine if a workers' compensation policy is in effect, has been properly cancelled pursuant to section 440.42(3), or whether it

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covers a particular individual. Accordingly, a JCC may be required to interpret contracts and examine evidence to reach such issues. See, e.g., Curtis-Hale, Inc. v. Geltz, 610 So. 2d 558 (Fla. 1st DCA 1992). A JCC may also be required to interpret a contract to determine the parties' rights and responsibilities under the Workers' Compensation Law. SeeTampa Bay Area NFL Football, Inc. v. Jarvis, 668 So. 2d 217 (Fla. 1st DCA 1996). Nevertheless, a JCC is not a court of general jurisdiction, and cannot reform contracts or effect a remedy not provided for in chapter 440. See Avalon Ctr. v. Hardaway, 967 So. 2d 268, 272 (Fla. 1st DCA 2007); see also Fred Stevens Tree Co. v. Harrison, 944 So. 2d 1109, 1111 (Fla. 1st DCA 2006);see also McArthur, 35 So. 3d at 107. The remedy sought and obtained by Zenith here, is not available under chapter 440.

Except in one limited situation, chapter 440 contemplates or permits the cancellation or expiration of policies only after timely notice. See § 440.42(3), Fla. Stat. (2007) (providing that no contract of insurance shall expire or be cancelled until proper, statutory notice is provided to employer and department). Generally, a policy for workers' compensation insurance remains in full force and effect until cancelled on the records of the agency administering workers' compensation law, in accordance with statutory requirements. See Travelers Ins. Co. v. Nettles, 528 So. 2d 1291 (Fla. 1st DCA 1988) (holding workers' compensation policy remained in effect and could not be cancelled retroactively notwithstanding employer's

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apparent misrepresentation). The only factual circumstance that allows for a "retroactive" cancellation of a policy is where there is duplicative or dual coverage, and both policies carry the same "effective date." § 440.42(3), Fla. Stat. (2007). Here, the factual predicate for chapter 440's singular allowance for retroactive cancellation or ab initio voidance of an insurance policy is not present.

Acknowledging chapter 440 does not contain the remedy afforded by the JCC here, Zenith argues that the JCC was obliged to seek a remedy outside of chapter 440, specifically the denial of recovery under section 627.409(1)(a), Florida Statutes (2007), because it is otherwise without remedy for the harm incurred. This argument, in addition to being flawed in its premise (as chapter 440 provides an arsenal of remedies to address the wrongs committed here), stands in stark contrast to the statutory...

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