Eastern Airlines v. Granese

• Decision Date: 09 February 1994
• Docket Number: No. 92-2326,92-2326
• Citation: 631 So.2d 365
• Parties: 19 Fla. L. Weekly D310 EASTERN AIRLINES, Appellant, v. Robert GRANESE, Appellee.
• Court: Florida District Court of Appeals

Page 365

631 So.2d 365

19 Fla. L. Weekly D310

EASTERN AIRLINES, Appellant, v. Robert GRANESE, Appellee.

No. 92-2326.

District Court of Appeal of Florida First District.

Feb. 9, 1994.

Andrew L. Richard of Richard & Richard, Miami, for appellants.

Martin J. Mickler, Jacksonville, for appellee.

KAHN, Judge.

Eastern Airlines, the employer in this workers' compensation matter, appeals an order in favor of the claimant, Robert Granese. In the order under review, the Judge of Compensation Claims (JCC) found that Granese suffered a compensable accident on December 8, 1988, and further denied Eastern's motion to dismiss. We affirm, and address only the JCC's ruling on the motion to dismiss.

On May 23, 1989, Granese, represented by counsel, filed a claim seeking payment of indemnity benefits and medical expenses. The carrier controverted the claim in its entirety on June 30, 1989. On December 28, 1989, the claimant, his lawyer, and the lawyer representing Eastern filed a document entitled "Voluntary Dismissal by Parties," stating that the "action (is) discontinued and dismissed with prejudice and without costs to either party." On September 13, 1990, Granese, represented by new counsel, filed a new claim requesting essentially the same indemnity benefits sought in the earlier claim. Eastern immediately filed a motion to dismiss, arguing that the claim had earlier been dismissed with prejudice, that the predecessor JCC approved the dismissal with prejudice on January 8, 1990, and that claimant failed to move to set aside the order approving the dismissal.

Rule 4.110(a), Florida Rules of Workers' Compensation Procedure, provides in part:

A notice of voluntary dismissal is without prejudice, except that a second notice of voluntary dismissal by the claimant operates as an adjudication of denial of any claim for the same benefit or benefits previously the subject of a voluntary dismissal.

It is undisputed that the notice of dismissal signed in December 1989 was not a second notice of voluntary dismissal. The committee notes to the 1984 amendment to Rule 4.110(a) state that the rule conforms workers' compensation procedure with Florida Rule of Civil Procedure 1.420(a)(1). Rule 1.420(a)(1) provides in pertinent part:

Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.

The civil rule governing voluntary dismissal contains a proviso allowing a plaintiff to state in the notice that the dismissal is with prejudice. The workers' compensation rule contains no such proviso, and, to the contrary, states that any notice, other than a successive notice, is without prejudice.

Eastern argues that we should be guided by the committee note stating that it was the intent of the drafter of the rule to conform workers' compensation procedure with the Rules of Civil Procedure. Eastern further urges that nothing in the workers' compensation rule states that a notice of voluntary dismissal may not be with prejudice. In response to these very arguments, the JCC reached the following conclusions:

The 1984 amendment to the Rule, which amendment governs herein, conforms that Rule to Rule 1.420(a)(1), Florida Rules of Civil Procedure. However, it was obviously not the...