City of Port St. Lucie v. Chambers

• Decision Date: 05 October 1992
• Docket Number: No. 91-02612,91-02612
• Citation: 606 So.2d 450
• Court: Florida District Court of Appeals
• Parties: 17 Fla. L. Week. D2283 CITY OF PORT SAINT LUCIE and Tri-County Insurance Council, Appellants, v. Lillian CHAMBERS, Appellee.

Page 450

606 So.2d 450

17 Fla. L. Week. D2283

CITY OF PORT SAINT LUCIE and Tri-County Insurance Council, Appellants, v. Lillian CHAMBERS, Appellee.

No. 91-02612.

District Court of Appeal of Florida,

First

District.

Oct. 5, 1992.

Rehearing Denied Nov. 17, 1992.

James T. Walker of Brennan, Hayskar, Jefferson & Gorman, P.A., Fort Pierce, for appellants.

Jerold Feuer, Miami, for appellee.

BOOTH, Judge.

This cause is before us on appeal from a final order awarding an increase in claimant's average weekly wage (AWW) based on concurrent employment. The sole issue on appeal is whether claimant was an employee of The Palm Beach Post (the Post).

On July 6, 1989, claimant was injured in a work-related accident while working as a camp counselor with the City of Port St. Lucie. Concurrently, claimant delivered newspapers for the Post. The Post classified claimant as an independent contractor, and she signed an independent contractor agreement. Under the terms of the contract, the newspaper carrier determines the method of delivery, the means of conveyance, provides her own transportation, provides her own vehicular insurance, furnishes a security bond, and furnishes a substitute carrier of the designated carrier's choice in case of absence. The newspaper carrier does not receive the same benefits and is not subjected to the same withholdings as employees of the paper.

Claimant testified that she was given an established paper route by the Post and obtained all her customers from the Post. Claimant was supplied a daily customer list from the Post to determine who would receive the paper on a particular day. Claimant picked up the papers at the Post's warehouse before 4:00 a.m. and delivered the papers before 6:30 a.m. Claimant provided her own transportation and operating costs of her vehicle and was paid 15 cents per daily paper and 45 cents per Sunday paper delivered. No social security or federal taxes were withheld from her check.

Although wages from concurrent employment are generally included in AWW calculations, the exclusion of independent contractors from the definition of employees in section 440.02(13)(d)1, Florida Statutes (1989), dictates that earnings of an independent contractor are excluded from AWW calculations. Edwards v. Caulfield, 560 So.2d 364 (Fla. 1st DCA 1990).

Under similar factual circumstances, the courts of this state have held that newspaper carriers are independent contractors. See Florida Publishing Co. v. Lourcey, 141 Fla. 767, 193 So. 847 (Fla.1940); Miami Herald Publishing Co. v. Kendall, 88 So.2d 276 (Fla.1956); Walker v. Palm Beach Newspapers, Inc., 561 So.2d 1198 (Fla. 5th DCA 1990), dismissed, 576 So.2d 294 (Fla.1990); Parker v. Sugar Cane Growers Co-op, 595 So.2d 1022 (Fla. 1st DCA 1992); Hopkins v. Department of Transportation, 596 So.2d 680 (Fla. 1st DCA 1991). Although some of the foregoing cases are civil tort actions, we find no basis for distinguishing between workers'...