Carroll Steel Erectors v. Alderman

• Citation: 599 So.2d 181
• Decision Date: 30 April 1992
• Docket Number: No. 91-1798,91-1798
• Parties: 17 Fla. L. Weekly D1139 CARROLL STEEL ERECTORS and the Claims Center, Appellants, v. Walter ALDERMAN and Jeanette Alderman, Appellees.
• Court: Florida District Court of Appeals

Page 181

599 So.2d 181

17 Fla. L. Weekly D1139

CARROLL STEEL ERECTORS and the Claims Center, Appellants, v. Walter ALDERMAN and Jeanette Alderman, Appellees.

No. 91-1798.

District Court of Appeal of Florida First District.

April 30, 1992.

Rehearing Denied May 28, 1992.

Dennis A. Ross, Lakeland, for appellants.

C. Kenneth Stuart, Jr., Lakeland, for appellees.

SMITH, Judge.

Appellants seek reversal of a workers' compensation order awarding death benefits to appellees as parents of an employee killed in an industrial accident. We affirm, except as to that portion of the order assessing penalties.

On appeal, appellants contend that appellees failed to carry their burden of proving dependency upon their son at the time of his death, and continuing thereafter; and in addition, appellants point to findings made by the judge in support of his final order which are unsupported by competent substantial evidence. Appellants also point to language which they argue indicates the application by the judge below of an erroneous standard of proof with respect to the issue of dependency, and his failure to consider the impact of the life insurance proceeds received by Mrs. Alderman. Although we find merit in appellants' arguments on these issues, we nevertheless conclude that upon consideration of the evidence in the light most favorable to appellees, and applying the presumption of correctness to the findings of the JCC where supported by competent, substantial evidence, we are compelled to affirm.

Wayne Alderman, son of the appellees, Walter and Jeanette Alderman, was killed in an industrial accident on November 3, 1989 while in the scope of his employment with appellant Carroll Steel Erectors. At the time of his death, he was living with his parents in their home in Mulberry, Florida. He had resided with his parents for approximately 11 years and had no known plans to live elsewhere. Wayne had his own room in the home, and in addition, had the benefit of having all meals prepared by Mrs. Alderman, who also attended to his laundry, cleaning, and other household services. In return, Wayne paid for the groceries consumed by the family, consisting of himself, and his parents, and he also paid other household expenses, including a monthly mortgage payment on the home of $203.66. In addition, Wayne provided services in maintaining the home and yard, and performed repairs on appellees' automobile.

Mrs. Alderman testified that she was given a pacemaker in 1985 or '86, and has not been employed outside the home since that time. Mr. Alderman, who was born on May 25, 1929, had heart bypass surgery in 1980 and again in 1984. He testified that after recovering from these operations, he returned to his fulltime occupation as a crane operator for the years 1985 through 1989, the year of his son's death.

Mrs. Alderman testified that when Mr. Alderman started having heart trouble late in 1979 or early 1980, their son took over all the bills and paid for the food consumed at home. He regularly paid the electric, telephone, water, television cable and garbage bills. He also paid the automobile insurance bill for his parents occasionally. Sometime in 1986 or 1987 Wayne began paying his mother a flat amount of $300 a month to cover the household expenses. In addition, he provided $50 to $100 in cash each week for groceries. Mrs. Alderman testified that in addition to the $300 per month to cover bills, which included the mortgage payment, Wayne would pay her extra in event some additional amount was needed. A number of cancelled checks were introduced as a composite exhibit reflecting these payments in regular amounts over the period of some three years prior to Wayne's death.

Following their son's death, the Aldermans moved from their Florida home to Georgia, where they now reside in a home which they share with two of their other children. At the time of the final hearing, they were renting their Florida home for $510 a month. Mrs. Alderman testified that their present living conditions are not up to the standards they enjoyed while living in their Florida home. She explained that they moved to Georgia following their son's death because residing in the Florida home was too emotionally difficult, and because they could not afford to continue living there. In Georgia, they share expenses with their two children, and one other person residing in the home, dividing all of the bills into fourths, the Aldermans paying one-fourth of the household expenses.

At the time of his death, Wayne Alderman had an average weekly wage of $443.27. Mr. Alderman's income, from his steady employment as a crane operator, equaled or exceeded that of his son. Appellees reported disposable income (adjusted gross income minus taxes) for 1986 of $25,814; for 1987, $25,235; for 1988, $27,069; and for 1989, $21,137. ¹ The income for those years includes Mr. Alderman's union pension of $182.50 per month.

Mrs. Alderman, as beneficiary of two life insurance policies on her son's life, received a total of $70,000 insurance proceeds. A portion of this money was used to pay off the indebtedness on Wayne's automobile, a 1984 Corvette, which she continues to own. Undisclosed amounts were also paid on Wayne's credit card bills, insurance, and money owed to the Internal Revenue Service. In addition to the 1984 Corvette, Mrs. Alderman also was the beneficiary of her son's Honda motorcycle.

The bulk of the insurance money was used to purchase a truck for Mr. Alderman to start his own interstate, long-haul trucking business. The truck was acquired in or around April 1990, at about the time the parties moved to Georgia. Their 1990 tax return reports the cost of the truck as $50,000, with an additional $3,432 spent on refurbishing before it was put into service, making a total cost of $53,432. Mr. Alderman quit his crane operator's job, apparently sometime in 1990, and reported only $6,843 in wages or salaries for 1990, and a business loss of $13,082 from the operation of his trucking business. He testified that he quit his job because he wanted to get into something that was less physically demanding, as driving the truck would be. He added it was difficult getting work as a crane operator at his age. The Aldermans reported for the year 1990 a negative adjusted gross income of $3,972 after deductions for depreciation on the truck and the rented home in Florida. Mr. Alderman testified that the low income from his trucking business was due to the lack of freight hauling assignments.

The burden was upon appellees to show that because of physical or mental incapacity, or lack of means, they were dependent on the deceased for support. Panama City Stevedoring Co. v. Padgett, 149 Fla. 687, 6 So.2d 822 (1942); MacDon Lumber Co. v. Stevenson, 117 So.2d 487 (Fla.1960); Terrinoni v. Westward Ho!, 418 So.2d 1143 (Fla. 1st DCA 1982); and Melweb Signs, Inc. v. Wright, 394 So.2d 475 (Fla. 1st DCA 1981). The judge below found that appellees met their burden, and we find no basis upon which to overturn that ruling.

In his final order, the judge found both appellees "physically limited based upon the testimony concerning their physical capabilities." No issue is made on appeal concerning Mrs. Alderman's physical capabilities. As for Mr. Alderman, aside from his history of heart surgeries, there is no evidence of any physical incapacity presently suffered by Mr. Alderman which would render him unable to work. However, his testimony that he found it necessary to seek a less physically demanding occupation is unchallenged. Mr. Alderman described his work as a crane operator as very physically taxing. He elaborated upon this further by explaining, among other things, that in contrast to vehicles designed for highway travel, crane equipment has no suspension system to protect the operator from bumps and jolts while riding over rough terrain, or even while travelling upon ordinary roadways. He also testified that he was having problems with the pulling and tugging required to run the cranes. Thus, while we could by no means envision long haul interstate truck driving as a sedentary occupation, it is clear that Mr. Alderman felt that truck driving was less physically demanding. Mr. Alderman's drastic reduction in income, which was noted by the JCC in his final order, appears without contradiction to be directly attributable to Mr. Alderman's physical limitations existing at the time of his son's death. The evidence concerning the physical limitations of both Mr. and Mrs. Alderman was undoubtedly a factor in the JCC's finding of "dependency" within the meaning of the statute as interpreted by...