CNA Ins. Co. v. Kemper Ins. Co.
| Decision Date | 13 February 1992 |
| Docket Number | No. 90-2417,90-2417 |
| Citation | 596 So.2d 81 |
| Parties | 17 Fla. L. Weekly D488 CNA INSURANCE COMPANY, Appellant, v. KEMPER INSURANCE COMPANY, Waste Management and Dee Gaskill, Appellees. |
| Court | Florida District Court of Appeals |
Ted R. Manry, III and James C. Delesie, Sr. of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
Ray Calafell, Jr. of Ray Calafell, Jr., P.A., Tampa, for appellee Dee Gaskill.
Nancy A. Lauten of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa, for appellee Kemper Ins. Co.
In this workers' compensation appeal, CNA Insurance Company, hereinafter CNA, appeals an order of the judge of compensation claims finding it liable for the claimant's future medical care and temporary total disability benefits and determining that CNA's claim for reimbursement from Kemper Insurance Company is not yet ripe for resolution. Because we find error in the legal analysis of the judge of compensation claims, we reverse.
On September 1, 1987, the claimant was working as a janitor for Waste Management of Tampa when he slipped on a wet floor and injured his knee and back. Kemper, the insurance carrier at risk when the fall occurred, did not dispute the compensability of the claim and provided the claimant with medical treatment and compensation benefits. When the claimant returned to work approximately three weeks after the fall, he continued to experience some problems with his knee and back. On February 26, 1989, the claimant was walking across the office floor prior to washing it when his knee gave way, causing him to fall. The claimant's knee had given way on him in a similar manner three or four times previously, all without warning. The claimant specifically denied any suggestion that he fell because his foot slipped. In the fall, the claimant broke his wrist and injured his neck and back. To date, these injuries have prevented his return to work. CNA, the insurance carrier at risk when this second fall occurred, paid disability benefits through February of 1990.
The claimant's claim for temporary total disability benefits and future medical care, inter alia, was heard in July of 1990 at a hearing in which both Kemper and CNA participated. Kemper argued that the claimant's present condition is the result of his 1989 fall so it is not liable for any benefits necessitated by that fall. CNA argued that the claimant's 1989 fall was the result of his leg buckling, and since that occurrence was a direct result of his 1987 fall, the claimant suffered no accident arising out of his employment in 1989 for which CNA might be held liable. After considering the testimony and the parties' arguments, the judge of compensation claims said,
I find that the cause of the Claimant's fall on 2/26/89 was his leg giving way on him, as it had done on several occasions in the past, and that the cause of his leg giving way was directly related to the accident of 9/1/87. I do not find this, however, to resolve the issue. There can be no doubt but that the Claimant suffered an accident on [2/26/89] when his leg gave way and he fell, and as a result of this accident, he suffered not only reinjury to the part of his body injured on 9/1/87, but additional injuries as well. The Employer was insured by CNA at the time of this fall. The fall of [2/26/89] is, therefore, the responsibility of both carriers.
The judge further ruled that until the claimant reached maximum medical improvement, all benefits should be paid by CNA and after that time, liability for the benefits could be prorated between the two carriers upon CNA's filing of a claim for reimbursement. This appeal followed.
Where, as here, there exists a controversy between two insurance carriers as to which one is liable for the claimant's benefits, the allocation of responsibility between the carriers is based...
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