Curtis-Hale, Inc. v. Geltz, CURTIS-HAL

CourtCourt of Appeal of Florida (US)
Writing for the CourtSHIVERS; BOOTH; WEBSTER; WEBSTER
Citation610 So.2d 558
Decision Date04 December 1992
Docket NumberNo. 91-4167,CURTIS-HAL,INC
Parties17 Fla. L. Week. D2733 , Employers Self Insurers Fund, and Claims Center, Appellants, v. James GELTZ and Aetna Casualty & Surety Company, Appellees, and Terrence W. McKibben, Appellee.

Page 558

610 So.2d 558
17 Fla. L. Week. D2733
CURTIS-HALE, INC., Employers Self Insurers Fund, and Claims
Center, Appellants,
v.
James GELTZ and Aetna Casualty & Surety Company, Appellees,
and
Terrence W. McKibben, Appellee.
No. 91-4167.
District Court of Appeal of Florida,
First District.
Dec. 4, 1992.
Rehearing Denied Feb. 3, 1993.

William H. Lore, of Joseph E. Smith, P.A., Orlando, for appellants.

Wendell J. Kiser and Edward M. Kuhn, of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellees James Geltz and Aetna Cas. & Surety Co.

Michael M. O'Brien, of O'Brien and Hooper, Orlando, for appellee Terrence W. McKibben.

SHIVERS, Judge.

Curtis-Hale, Inc. (Curtis-Hale), its self-insured fund, and its servicing agent appeal the Order of the Judge of Compensation Claims (JCC) finding Appellee Aetna Casualty and Surety Company (Aetna) had properly cancelled its worker's compensation (WC) policy covering Appellee James Geltz, d/b/a Carpentry Services. The claimant was injured on September 12, 1988, within the course and scope of his employment with Geltz. Geltz was a subcontractor for Curtis-Hale, the general contractor. The issue on appeal is whether competent substantial evidence (CSE) supports the finding that Geltz no longer had

Page 559

WC coverage with Aetna at the time of Claimant's accident, with the result that Appellants were required to provide WC benefits to Claimant, their statutory employee. See section 440.10(1), Florida Statutes (1987); Atlantic Masonry v. Miller Construction, 558 So.2d 433, 435 & n. 2 (Fla. 1st DCA 1990). We affirm the Order.

In August 1987, in response to a promotional mail-out, Geltz contacted Anthony Brooks, of the Brooks-Starling-Ruiz Agency (Brooks-Starling), to obtain WC coverage. CSE supports the finding that Geltz purchased coverage with an effective policy period of August 27, 1987, to August 27, 1988. Geltz testified that, based on his discussions with Brooks in August 1987, he thought the duration of the policy was "a year." Thus, in the absence of a renewal by the insured, the policy would ordinarily have terminated in August 1988.

Brooks-Starling procured WC coverage for Geltz by going through the assigned risk pool, which in Florida is handled by the South Atlantic Council on Compensation Insurance (SACCI). Aetna is the carrier that ultimately wrote out the policy for Geltz. Debbie Skiados, of Aetna's WC assigned risk unit, testified that the insurance agent procuring the policy is the agent of the applicant/employer, not of the carrier. Her testimony indicates that Brooks had no authority to bind Aetna. Nothing in the record indicates Geltz ever contacted Aetna with the intent to renew the one-year policy. Geltz testified that he thought he would receive something in the mail around the renewal date, which he described as a "pretty busy" time for him, and that he "kind of relied on [Brooks] for some guidance."

Problems arose from dishonored checks and non-payment of the premiums for Geltz's policy. Aetna issued a Notice of Termination dated November 25, 1987, terminating the policy as of December 25, 1987. Upon replacement of the dishonored check, however, Aetna issued a Reinstatement Notice, reinstating the policy. Geltz had entered a Premium Finance Agreement initially with Premium Assignment Corporation (Premium Assignment) and later with Capitol Premium Plan, Inc. (Capitol Premium), but he testified he "had no idea" of the circumstances underlying the change from one premium financing group to the other.

On February 16, 1988, Capitol Premium sent a letter to Geltz regarding an attempt to cancel his insurance policy, and instructing him about the amount and form of payment that would be necessary to avoid a cancellation. Geltz testified that he recalled receiving that letter, as well as another cancellation notice from Capitol Premium, with a February 19, 1988, postmark, but he did not recall doing anything in response to those letters. A Notice of Cancellation from Capitol Premium to Geltz, dated March 2, 1988, specifically notified him that "the policy described above is cancelled for non-payment of an installment" in accordance with the prior agreement incorporating a power of attorney.

Curtis-Hale asserts that it had a business practice of requiring subcontractors to submit a Certificate of Insurance at the time of signing the subcontractual agreement. That was to ensure that subcontractors insured their own risks of loss for accidents incurred by employees of the subcontractors. See section 440.10(1), Florida Statutes (1987). In March 1988, five months before Geltz started work on a project for Curtis-Hale, Curtis-Hale requested a Certificate of Insurance. That certificate, issued by Brooks-Starling on March 28, 1988, showed the effective date of Geltz's policy as August 27, 1987, and the policy expiration date as August 27, 1989, rather than 1988. Under the heading "Cancellation," the certificate states "should any of the above described policies be cancelled before the expiration date thereof, the issuing company will endeavor to mail 10 days written notice to the certificate holder named to the left [Curtis-Hale], but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives."

Ultimately, a request was made for Geltz's policy to be cancelled because of a continuing failure to pay premium installments

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to Capitol Premium. The ensuing events relate directly to the issue of which carrier was providing coverage at the time of the accident and, accordingly, should bear responsibility for payment of Claimant's benefits. Aetna issued a Notice of Termination, dated April 12, 1988, with an April 14, 1988, postmark, stating that the August 27, 1987, policy would be terminated as of May 12, 1988. Because the cancellation date was not 30 days or more from the postmarked date, the notice failed to meet the requirements set forth in the statutes and rule governing WC policy cancellation. Employers Self Insurers Fund v. Torres, 565 So.2d 395 (Fla. 1st DCA 1990); Young v. Travelers Insur. Co., 496 So.2d 232 (Fla. 1st DCA 1986); Peninsular Fire Insur. Co. v. King, 282 So.2d 672 (Fla. 1st DCA 1973).

Section 440.42(2), Florida Statutes (1987), provides: "No contract or policy of insurance issued by a carrier under this chapter shall expire or be canceled until at least 30 days have elapsed after a notice of cancellation has been sent to the [Division of Workers' Compensation] and to the employer in accordance with the provisions of subsection 440.185(7)." That subsection requires that notice of such a policy cancellation or expiration be mailed to the Division in accordance with the Division's rules. The rule implementing this procedure states that, "[e]xcept as hereinafter provided, a contract or insurance policy shall not be terminated until and unless 30 days have elapsed after notice of termination has been given to the Division and the employer" in accordance with section 440.42(2). "When the notice of termination is sent by mail, the 30 days will be calculated from the 1st day following the date of mailing as evidenced by postmark." Fla.Admin. Code Rule 38F-6.008(1).

The validity of the attempted cancellation and the effect of the improper notice on Geltz's policy coverage are disputed by Appellants and Aetna. It is clear that the notice, postmarked April 14, sought termination on May 12, 1988, merely 28 days after mailing. Relying on our...

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5 practice notes
  • Bend v. Shamrock Serv., No. 1D10–0019.
    • United States
    • Court of Appeal of Florida (US)
    • April 13, 2011
    ...a JCC may be required to interpret contracts and examine evidence to reach such issues. See, e.g., Curtis–Hale, Inc. v. Geltz, 610 So.2d 558 (Fla. 1st DCA 1992). A JCC may also be required to interpret a contract to determine the parties' rights and responsibilities under the Workers' Compe......
  • Bend v. Shamrock Serv., CASE NO. 1D10-0019
    • United States
    • Court of Appeal of Florida (US)
    • February 28, 2011
    ...a JCC may be required to interpret contracts and examine evidence to reach such issues. See, e.g., Curtis-Hale, Inc. v. Geltz, 610 So. 2d 558 (Fla. 1st DCA 1992). A JCC may also be required to interpret a contract to determine the parties' rights and responsibilities under the Workers' Comp......
  • Tejeda v. City of Hialeah, 1D21-704
    • United States
    • Court of Appeal of Florida (US)
    • December 29, 2021
    ...workers' compensation coverage exists. Bend v. Shamrock Servs., 59 So.3d 153, 156 (Fla. 1st DCA 2011) (citing Curtis-Hale, Inc. v. Geltz, 610 So.2d 558 (Fla. 1st DCA 1992)). We have further held that "[a] JCC may also be required to interpret a contract to determine the parties' rights......
  • Tejeda v. City of Hialeah/Sedgwick Claims Mgmt. Servs., Inc., 1D21-704
    • United States
    • Court of Appeal of Florida (US)
    • December 29, 2021
    ...compensation coverage exists. Bend v. Shamrock Servs. , 59 So. 3d 153, 156 (Fla. 1st DCA 2011) (citing Curtis-Hale, Inc. v. Geltz , 610 So. 2d 558 (Fla. 1st DCA 1992) ). We have further held that "[a] JCC may also be required to interpret a contract to determine the parties' rights and......
  • Request a trial to view additional results
5 cases
  • Bend v. Shamrock Serv., No. 1D10–0019.
    • United States
    • Court of Appeal of Florida (US)
    • April 13, 2011
    ...a JCC may be required to interpret contracts and examine evidence to reach such issues. See, e.g., Curtis–Hale, Inc. v. Geltz, 610 So.2d 558 (Fla. 1st DCA 1992). A JCC may also be required to interpret a contract to determine the parties' rights and responsibilities under the Workers' Compe......
  • Bend v. Shamrock Serv., CASE NO. 1D10-0019
    • United States
    • Court of Appeal of Florida (US)
    • February 28, 2011
    ...a JCC may be required to interpret contracts and examine evidence to reach such issues. See, e.g., Curtis-Hale, Inc. v. Geltz, 610 So. 2d 558 (Fla. 1st DCA 1992). A JCC may also be required to interpret a contract to determine the parties' rights and responsibilities under the Workers' Comp......
  • Tejeda v. City of Hialeah, 1D21-704
    • United States
    • Court of Appeal of Florida (US)
    • December 29, 2021
    ...workers' compensation coverage exists. Bend v. Shamrock Servs., 59 So.3d 153, 156 (Fla. 1st DCA 2011) (citing Curtis-Hale, Inc. v. Geltz, 610 So.2d 558 (Fla. 1st DCA 1992)). We have further held that "[a] JCC may also be required to interpret a contract to determine the parties' rights......
  • Tejeda v. City of Hialeah/Sedgwick Claims Mgmt. Servs., Inc., 1D21-704
    • United States
    • Court of Appeal of Florida (US)
    • December 29, 2021
    ...compensation coverage exists. Bend v. Shamrock Servs. , 59 So. 3d 153, 156 (Fla. 1st DCA 2011) (citing Curtis-Hale, Inc. v. Geltz , 610 So. 2d 558 (Fla. 1st DCA 1992) ). We have further held that "[a] JCC may also be required to interpret a contract to determine the parties' rights and......
  • Request a trial to view additional results

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