Carvell v. Caviness Motor Co., 89-376

• Decision Date: 02 November 1989
• Docket Number: No. 89-376,89-376
• Citation: 552 So.2d 250,14 Fla. L. Weekly 2537
• Parties: 14 Fla. L. Weekly 2537 Michael J. CARVELL, Appellant, v. CAVINESS MOTOR COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 250

552 So.2d 250

14 Fla. L. Weekly 2537

Michael J. CARVELL, Appellant, v. CAVINESS MOTOR COMPANY, Appellee.

No. 89-376.

District Court of Appeal of Florida,

First District.

Nov. 2, 1989.

Rehearing Denied Dec. 5, 1989.

Stephen A. Rappenecker of Stephen A. Rappenecker, P.A., Gainesville, for appellant.

James H. McCarty, Jr. of Langdon & McCarty, P.A., Gainesville, for appellee.

BOOTH, Judge.

This cause is before us on appeal of an order determining claimant's average weekly wage. For the following reasons, we reverse and remand.

Claimant is a used car salesman with approximately 20 years' experience in used car sales and management. The employer hired him as a used car salesman on September 18, 1987. He worked two sixteen-hour days, a four-hour day, and a two-hour day before being injured. The partial days and his failure to work on some of the other days were due to a tooth abscess which kept him out of work. When he returned to work on September 24, a car rolled over his right foot and injured him.

During the 38 hours he worked, claimant earned $749.13 in commissions. There were also five other used car salesmen who were paid at the same commission rate as claimant. Those salesmen earned substantially more than claimant that week and also had higher average earnings for both the past 13 weeks and the prior year. All the salesmen worked at the same location, were part of the same sales crew, and performed exactly the same work. The record also reflects that all salesmen had the option of using a demonstrator automobile immediately upon hiring. If they accepted, their W-2 forms reflected a $125 monthly salary.

Although claimant argued that his average weekly wage should have been calculated under the Section 440.14(1)(b), Florida Statutes, similar employee method, the judge of compensation claims found that method inapplicable and instead applied the Section 440.14(1)(d) actual wages method. The judge also refused to include the value of the demonstrator in the average weekly wage, because claimant never actually used it.

The judge erred in refusing to apply the similar employee wage calculation method. In Coleman v. Burnup & Sims, Inc., 95 So.2d 895 (Fla.1957), the Supreme Court held that "[t]he proper test to guide one would be to take a 'similar' employee who does the same type of work, and one who is working in the same locality, and if possible one who worked in the same crew." Another factor is whether the supposedly similar...