Edward J. Gerrits, Inc. v. McKinney, ASHEMIMRY-STIRR

Decision Date04 February 1982
Docket NumberNo. YY-424,ASHEMIMRY-STIRR,YY-424
Citation410 So.2d 542
PartiesEDWARD J. GERRITS, INC. and United States Fidelity and Guaranty Company, Appellants, v. Stanley McKINNEY, Deceased, Isaac Mae McKinney, Wife, Norman Eric Olson, Deceased, Betty Olson, Wife, Ashemimry-Stirr Construction Company, UnitedCommercial Agencies, Ltd., and the Division of Workers' Compensation, Appellees.CONSTRUCTION COMPANY, Cross-Appellant, v. Stanley McKINNEY, Deceased, Isaac Mae McKinney, Wife, Norman Eric Olson, Deceased, Betty Olson, Wife, Edward J. Gerrits, Inc., United States Fidelityand Guaranty Company, United Commercial Agencies, Ltd. and the Division ofWorkers'Compensation, Cross-Appellees.
CourtFlorida District Court of Appeals

Summers Warden, Miami, for appellants.

Harold Mendelow of Solomon & Mendelow, Miami Springs, for appellee McKinney.

Jerold Feur, Miami, for appellee Olson.

Richard E. Gerstein and Paul M. Rashkind of Sams, Gerstein & Ward, Miami, for cross-appellant Ashemimry-Stirr Const. Co.

JOANOS, Judge.

This workers' compensation appeal concerns the operation and management of a construction project in Saudi Arabia. The order dealt with the consolidated claims of the dependents of both McKinney and Olson, who were killed simultaneously in an automobile accident on September 25, 1978 while working on the construction of a hospital. In the order, the deputy found that Edward J. Gerrits, Inc. ("G. Inc."), a Florida corporation, was a joint venturer with Ashemimry-Stirr Construction Co. ("A-S Co."), the entity that was primarily responsible for the construction of the Saudi Arabian hospital. (A-S Co. is the sole proprietorship of an Arab nationalist, Nasir Ashemimry, combined with a Caymen Islands corporation known as "Stirr Consulting Company".) Holding that G. Inc.'s workers' compensation policy covered the accident in Saudi Arabia, the deputy concluded that the decedents were employees of the joint venture and that G. Inc. solicited their services, accepted their employment applications and made arrangements for their travels. Finally, the deputy found the joint venturers (G. Inc. and A-S Co.) jointly and severally liable for dependency benefits for both decedents as well as for attorney's fees. We affirm the portion of the order holding G. Inc. liable for workers' compensation benefits, remand for a redetermination of attorney's fees, and reverse as to the joint and several liability of A-S Co.

The principal issue with regard to G. Inc.'s responsibility for workers' compensation benefits was whether or not G. Inc. could be regarded as an employer of the two men while they were working in Saudi Arabia. 1 We hold that there was competent substantial evidence to support the deputy's order finding G. Inc. and its carrier liable for workers' compensation benefits, although not under the rationale that G. Inc. was a joint adventurer with A-S Co.

The evidence that is supportive of the deputy's decision derives primarily from testimony concerning the business activities of Michael Gerrits, the key figure in this saga. Michael was an officer and shareholder of G. Inc. In addition, he was hired by Nasir Ashemimry to be the managing director of A-S Co., and was the spokesman for Stirr Consulting Co. in its negotiations with Nasir Ashemimry. Michael's involvement with each of these entities made it difficult, if not impossible for an outsider to discern which "hat" Michael was wearing at any particular time. This confusion was intensified by Michael's failure to clearly identify for whom he was negotiating and by his use of the G. Inc. offices to conduct much of his business when he was not in Saudi Arabia.

One of the functions which Michael testified that he performed for A-S Co. was to review employment applications and recommend who was to be hired to work on the Saudi Arabian hospital project. Whether the hiring function was performed on behalf of A-S Co. or on behalf of G. Inc. was in dispute since E. J. Gerrits, the principal officer and shareholder of G. Inc., testified that G. Inc. was hired as a consultant to A-S due to its experience in "buying men" for construction jobs. More importantly, the evidence is uncontradicted that Michael and another officer/shareholder of G. Inc., Maartje Murphy, utilized the offices of G. Inc. to receive employment applications and to make all of the arrangements for travel, shots and visa applications for those persons who were ultimately hired. The G. Inc. premises were also used on occasion as the place where an employee's family members (including Mrs. McKinney), could pick up money earned by the employee while working in Saudi Arabia. 2 Men who had sought employment or who were asked to locate help for the Saudi Arabia job spoke directly with Michael or Maartje, knowing their connection with G. Inc. yet never being informed that G. Inc. was not the primary employer. Although the men who were hired received a memo on A-S Co. stationery stating that "you are employed by a corporation registered in Saudi Arabia," they were never directly informed...

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7 cases
  • Beaubien v. Cambridge Consol., Ltd.
    • United States
    • Florida District Court of Appeals
    • March 31, 1995
    ...or assuming that he is doing an act within the scope of his authority, the corporation is bound thereby); Edward J. Gerrits, Inc. v. McKinney, 410 So.2d 542 (Fla. 1st DCA), rev. denied 419 So.2d 1196 (Fla.1982) (same); Dade County Dairies, Inc. v. Projected Planning Co., 158 So.2d 565 (Fla.......
  • Symons Corp. v. Tartan-Lavers Delray Beach, Inc.
    • United States
    • Florida District Court of Appeals
    • September 26, 1984
    ...or assuming that he is doing an act within the scope of his authority, the corporation is bound thereby. Edward J. Gerrits, Inc. v. McKinney, 410 So.2d 542 (Fla. 1st DCA 1982). See also, S & S Air Conditioning Co. v. Cantor, 343 So.2d 923 (Fla. 3d DCA 1977). See also cases on apparent autho......
  • Austin v. Duval County School Bd.
    • United States
    • Florida District Court of Appeals
    • July 13, 1995
    ...even one of the five elements has precluded a finding of joint venture. See, e.g., Kislak, 95 So.2d at 517; Edward J. Gerrits, Inc. v. McKinney, 410 So.2d 542, 545 (Fla. 1st DCA), review denied, 419 So.2d 1196 (Fla.1982); Brown v. Snellgrove, 503 So.2d 447, 448 (Fla. 2d DCA), review denied,......
  • Industrial Electrical and Instrumentation, Inc. v. Commissioner of Internal Revenue, T.C. Memo. 2008-84 (U.S.T.C. 4/3/2008)
    • United States
    • U.S. Tax Court
    • April 3, 2008
    ...or assuming that he is doing an act within the scope of his authority, the corporation is bound thereby. Edward J. Gerrits, Inc. v. McKinney, 410 So. 2d 542 (Fla. Dist. Ct. App. 1982). We conclude that respondent has proven by clear and convincing evidence that petitioner fraudulently under......
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