Byerley v. Citrus Pub., Inc., 97-1103.

• Decision Date: 22 January 1999
• Docket Number: No. 97-1103.,97-1103.
• Parties: Audrey BYERLEY and Donald Byerley, Appellants, v. CITRUS PUBLISHING, INC., etc., Appellee.
• Court: Florida District Court of Appeals

725 So.2d 1230

Audrey BYERLEY and Donald Byerley, Appellants, v. CITRUS PUBLISHING, INC., etc., Appellee.

No. 97-1103.

District Court of Appeal of Florida, Fifth District.

January 22, 1999.

Rehearing Denied February 24, 1999.

Susan W. Fox of MacFarlane, Ferguson & McMullen, and Larry L. Rardon of Hughes, Rardon & Rodriguez, P.A., Tampa, for Appellants.

James K. Powers of McGee & Powers, P.A., Orlando, for Appellee.

THOMPSON, J.

Audrey and Donald Byerley ("Byerley") appeal a final summary judgment entered in favor of Citrus Publishing, Inc. ("employer") in their action for negligence and loss of consortium. The trial court ruled that Byerley's injury was exclusively covered by the Florida's Workers' Compensation Act, section 440.11(1995), Florida Statutes, and thus an independent tort action was barred. Byerley argues that she was not an employee at the time of the accident, and therefore, she was not covered by workers' compensation. Byerley had filed a claim for benefits with her employer before she initiated the civil tort suit, but her claim was denied by the employer and its carrier. The employer argues that Byerley was an employee and covered by workers' compensation, even though her claim for benefits was denied on the ground that she was not an employee at the time the injury occurred. We reverse the summary judgment.

Byerley was injured in an accident which occurred on the employer's premises. She had completed work, had punched out for the day, and was on her way home when the accident occurred. Previously, Byerley had placed boxes which she intended to take home on the loading dock. In order to get the boxes, she deviated from the most direct route to the parking lot to get to the loading dock. On her way, she tripped over a bench with protruding runners that had been placed on the sidewalk adjacent to the loading dock. As a result of the accident, Byerley suffered a compression fracture of the vertebrae in her back, pulled her right groin muscle, fractured her left kneecap, and suffered numerous abrasions. Her total medical bills exceeded $30,000.

Byerley filed a claim for workers' compensation benefits which was denied by the employer and its workers' compensation carrier. The notice of denial stated: "Injury did not arise out [of] the course and scope of [Byerley's] employment. Employee was clocked out and had exited the building, when she tripped over a bench on the pavement." After the denial, and pursuant to sections 440.06 and 440.11(1), Florida Statutes (1995), Byerley filed a tort action. The employer asserted in its answer, among other things, that Byerley's exclusive remedy was workers' compensation. See 440.11, Fla. Stat. The employer alleged that "Byerley was in the scope of her employment and the tort claim against Citrus Publishing is barred by the Workers' Compensation Immunity as provided by Florida Statutes." The employer then moved for summary judgment. Byerley filed an affidavit in opposition to the motion to dismiss. In her affidavit, Byerley stated that she filed a claim and was advised by her employer and the employer's carrier that she was not entitled to any workers' compensation benefits, and that she relied upon those representations and filed a tort action. She attached the insurance carrier's notice of denial to her affidavit.

The trial court granted the motion and entered summary final judgment in the employer's favor, finding "as a matter of law that the alleged accident occurred in the scope and course of Mrs. Byerley's employment and is the major contributing cause to her injuries." The court relied upon Perez v. Publix Supermarkets, Inc., 673 So.2d 938 (Fla. 3d DCA 1996), and Vigliotti v. K-mart Corp., 680 So.2d 466 (Fla. 1st DCA 1996), to support its decision. The trial court also stated, "Plaintiffs have not asserted estoppel nor does this Court find that it is supported by the record presented." We disagree with this ruling.

The employer created a Hobson's choice for Byerley: the employer, through its insurance carrier, denied her claim for workers' compensation, and then, when Byerley elected to proceed in a tort action, argued that she could not sue because her exclusive remedy was the Workers' Compensation Act. The employer argues that it cannot be estopped from claiming workers' compensation immunity because the denial of benefits was issued by its workers' compensation carrier, and thus, is not attributable to the employer. Sections 440.06 and 440.11(1), Florida Statutes, allowed Byerley to file a civil suit if the employer did not secure payments for job related injuries. Under the Workers' Compensation Act, the employer has the sole obligation to secure payment of benefits for the employee whether the employer pays the compensation or furnishes the benefits through a compensation carrier. See §§ 440.09(1), 440.10(1)(a), Fla. Stat (1995). Therefore, an employer may not divorce itself from its compensation carrier's representation that an employee's injury did not occur in the course and scope of employment. Cf. Boyd v. Florida Memorial College, 475 So.2d 990 (Fla. 1st DCA 1985)

(employer estopped from asserting statute of limitations defense to employee's claim for compensation where employer's compensation carrier made misstatement to employee that benefits were not available while employee was in prison but would be payable upon release).

The workers'...