Chiang v. Wildcat Groves, Inc.

• Decision Date: 15 October 1997
• Docket Number: No. 96-04531,96-04531
• Citation: 703 So.2d 1083
• Parties: 22 Fla. L. Weekly D2425 Ben L. CHIANG, M.D., Appellant, v. WILDCAT GROVES, INC., Citrus Self-Insurers Fund, and PCA Solutions, Inc., f/k/a Executive Risk Consultants, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 1083

703 So.2d 1083

22 Fla. L. Weekly D2425

Ben L. CHIANG, M.D., Appellant, v. WILDCAT GROVES, INC., Citrus Self-Insurers Fund, and PCA Solutions, Inc., f/k/a Executive Risk Consultants, Inc., Appellees.

No. 96-04531.

District Court of Appeal of Florida Second District.

Oct. 15, 1997.

Rehearings Denied Dec. 9, 1997 and Dec. 12, 1997.

John M. Pellett and Timothy F. Malloy of Freeman, Hunter & Malloy, Tampa, for Appellant.

Christopher C. Ferguson of Riden, Earle & Kiefner, P.A., St. Petersburg, for Appellee Wildcat Groves.

Mary Ann Stiles and Robert J. Grace, Jr., of Stiles, Taylor, Grace & Smith, P.A., Tampa, for Appellee Citrus Self Insurers Fund.

Matthew J. Jowanna of Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, P.A., Tampa, for Appellee PCA Solutions.

LAZZARA, Judge.

The appellant, Dr. Chiang, seeks our review of the trial court's order dismissing with prejudice his third-party contribution claim filed against Wildcat Groves, Inc. (Wildcat), Citrus Self-Insurers Fund (the Fund), and PCA Solutions, Inc. (PCA) (collectively the appellees) on the basis that the immunity provisions of Florida's Workers' Compensation Act insulated the appellees from "common liability" under Florida's Uniform Contribution Against Tortfeasors Act. ¹ For the reasons explained, we reverse and remand for further proceedings.

Dr. Chiang's former patient, Walter Kitschke (Kitschke), sued him for medical malpractice arising out of medical treatment administered in connection with injuries sustained in an automobile accident occurring on November 29, 1990. In due course, Dr. Chiang filed a fourth amended third-party complaint against the appellees alleging that they breached certain duties of care involving Kitschke's treatment which rendered them liable in contribution as joint tortfeasors for all or part of the damages which Kitschke may recover in the malpractice action. Dr. Chiang alleged the following factual scenario in support of his contribution claim.

On the day of the accident, Kitschke was employed by Wildcat which had workers' compensation insurance coverage through the Fund with PCA as the servicing agent. Following the accident, the appellees undertook the responsibility of providing workers' compensation benefits to Kitschke, including the furnishing of home health care services through a nursing agency. On January 18, 1991, however, the appellees ceased providing benefits to Kitschke because their investigation determined that Kitschke was traveling from home to a work site when he was involved in the automobile accident. They claimed, therefore, that based on section 440.092 Kitschke's injuries were not suffered during the course of his employment and thus he was not entitled to workers' compensation benefits. ² In support of this claim, the appellees filed a "Notice of Denial" with the Florida Department of Labor and Employment Security, Division of Workers' Compensation, pursuant to section 440.20(6), a copy of which was attached to the complaint.

After the termination of workers' compensation benefits, however, the appellees and Kitschke entered into a settlement agreement pursuant to section 440.20(12)(b), which was later approved by a judge of compensation claims. A copy of this agreement was also attached to the complaint. It reflects, consistent with Dr. Chiang's allegations, that Kitschke and the appellees stipulated and agreed to the following pertinent facts: (1) that the appellees controverted the compensability of the workers' compensation claim because Kitschke was not injured during the course of his employment; (2) that all the benefits paid to Kitschke prior to the cessation of workers' compensation benefits totaling $19,020.34 were gratuitous in nature and did not constitute benefits payable under Florida's Workers' Compensation Act; (3) that Kitschke would return these previously paid benefits by subtracting them from the overall settlement amount of $265,870.34 to be paid by the appellees; (4) that the final settlement amount of $246,850 paid to Kitschke represented the payment of benefits which he might have been entitled to under Florida's Workers' Compensation Act in the absence of the agreement; (5) that upon approval of the settlement agreement "a situation exist[ed] in which effectively [Kitschke] was not provided with compensation or any other benefits under the Florida Workers' Compensation Act;" and (6) that Kitschke would voluntarily withdraw his previously filed claim for workers' compensation benefits. The agreement also recited the significant stipulated fact that "[t]hrough the course of additional investigation and discovery, the position of the [appellees] that this was not a compensable claim was supported by the evidence and testimony obtained and the parties have determined that this claim is not compensable." (Emphasis added.)

In light of these developments, Dr. Chiang specifically alleged that Kitschke "was not in the course and scope of his employment at the time of the November 29, 1990 motor vehicle accident" and that the "the injuries suffered by [Kitschke] as a result of the accident and the sequela therefrom are not compensable claims under the Florida Workers' Compensation Act." He further alleged that "[t]he monies paid to [Kitschke] by Wildcat, the Fund and PCA, both prior to and after January 18, 1991, were gratuitous in nature and did not constitute workers' compensation benefits."

Given this factual scenario, Dr. Chiang asserted that Wildcat, the Fund, and PCA assumed a common law duty of care to Kitschke which required them to act reasonably and with due regard for Kitschke's health and well-being as a result of paying benefits in the absence of a statutory duty to do so. He further claimed that Wildcat, the Fund, and PCA breached this duty in two significant respects. First, they selected a home health care company which was incapable of delivering the care and treatment which Dr. Chiang ordered for Kitschke. Second, their sudden and immediate cessation of benefits to Kitschke occurred at a critical period of time in his recovery when he was in need of therapy and treatment for an infection. As a consequence of these negligent acts, Dr. Chiang alleged that Wildcat, the Fund, and PCA caused or contributed to the injuries (which included the amputation of a leg) which formed the basis of Kitschke's malpractice action and that they were or may be liable to Dr. Chiang in contribution as joint tortfeasors for all or part of the damages which Kitschke may recover against Dr. Chiang.

Dr. Chiang based his contribution claim on Florida's Uniform Contribution Among Tortfeasors Act, section 768.31. Subsection (2)(a) of the act provides for a right of contribution among joint tortfeasors, a right which was generally unknown under the common law. See Westinghouse Elec. Corp. v. J.C. Penney Co., 166 So.2d 211, 214 (Fla. 1st DCA 1964). Subsection (2)(b) of the act provides that such a right "exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability " and limits the tortfeasor's total recovery "to the amount paid by him in excess of his pro rata share." (Emphasis added.) As one court has explained, the purpose of the act is "to apportion the responsibility to pay innocent injured third parties between or among those causing the injury." Paoli v. Shor, 345 So.2d 789, 790 (Fla. 4th DCA), approved, 353 So.2d 825 (Fla.1977).

The appellees responded by presenting a common argument to the trial court in support of dismissal of Dr. Chiang's contribution claim. The sole thrust of their argument was that because Kitschke had elected the remedy of workers' compensation benefits they were immunized from liability under the terms of section 440.11(1), which provides in pertinent part that "[t]he liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee." (Emphasis added.) ³ They reasoned, therefore, that by virtue of this immunity they could not share a "common liability" with Dr. Chiang for Kitschke's injuries under section 768.31(2)(b). In support of their argument, the appellees relied principally on the cases of Michael v. Centex-Rooney Construction Co., 645 So.2d 133 (Fla. 4th DCA 1994), and State, Department of Transportation v. V.E. Whitehurst & Sons, Inc., 636 So.2d 101 (Fla. 1st DCA), review denied, 645 So.2d 456 (Fla.1994). ⁴

The trial court accepted the appellees' argument and rendered an order dismissing Dr. Chiang's contribution claim with prejudice "based upon the issues of workers' compensation immunity." In doing so, it specifically cited to Michael and Whitehurst, as well as chapter 440 generally. Although we fully agree with the principles and results announced in those cases, which we will analyze below, nevertheless we conclude, based on the state of this record, that they do not control the disposition of this case and that the trial court erred in relying on them in support of dismissal.

In Michael, an injured worker had filed a workers' compensation claim against a subcontractor and its insurance carrier as a result of suffering injuries in an alleged employment-related accident. The subcontractor and the carrier resisted the claim on the basis that the worker was an independent contractor at the time of the accident and not an employee of the subcontractor. A judge of compensation claims agreed with this contention and ruled that the worker was not entitled to workers' compensation benefits. The worker appealed this determination but later dismissed the appeal after entering into a workers' compensation lump sum settlement agreement with the subcontractor and the carrier in accord with section 440.20(12)(b). Subsequent to the settlement, the worker sued the subcontractor and its general contractor in tort for the same injuries. The trial court entered summary judgment against the...