Fawaz v. Florida Polymers, No. 91-3466

CourtCourt of Appeal of Florida (US)
Writing for the CourtERVIN; ZEHMER; WEBSTER; WEBSTER
Citation622 So.2d 492
Parties18 Fla. L. Week. D1603 Leila FAWAZ, Appellant, v. FLORIDA POLYMERS and Fiesco, Appellees.
Decision Date13 July 1993
Docket NumberNo. 91-3466

Page 492

622 So.2d 492
18 Fla. L. Week. D1603
Leila FAWAZ, Appellant,
v.
FLORIDA POLYMERS and Fiesco, Appellees.
No. 91-3466.
District Court of Appeal of Florida,
First District.
July 13, 1993.
Rehearing Dismissed Aug. 18, 1993.

Page 493

William G. Berzak, Orlando, Bill McCabe, Longwood, for appellant.

Thomas H. McDonald, Kristin J. Swanson, Rissman, Weisberg, Barrett & Hurt, P.A., for appellees.

ERVIN, Judge.

Leila Fawaz appeals the denial of her claims for workers' compensation benefits, which was based in part on the defense set out in Martin Co. v. Carpenter, 132 So.2d 400 (Fla.1961). 1 She asserts the judge of compensation claims (JCC) erred in applying

Page 494

this defense and the misrepresentation provision of Section 440.15(5)(a), Florida Statutes (Supp.1990), to deny her claims in their entirety, or, in the alternative, in denying her claims for temporary partial disability (TPD) and temporary total disability (TTD) benefits, medical benefits for treatment by Dr. Yaszemski and Beth Israel Hospital, vocational rehabilitation benefits, and costs and attorney's fees. We agree, reverse the denial, and remand the case for further proceedings.

Sometime during 1984 or 1985, Fawaz fell at her home in Massachusetts and injured her back, sustaining a compression fracture at L-3. She underwent two partial bilateral laminectomies in 1987 and was diagnosed as having post-traumatic lumbar stenosis with nerve-root irritation. Claimant testified that she recovered quickly and had no problems until her industrial accident of December 6, 1988, when she fell while working for the employer, Florida Polymers. She was diagnosed by Dr. Fred Schroeder, an orthopedist, as having a musculoligamentous strain of her back resulting from the injury on December 6, 1988, as well as bone protrusion caused by the previous fracture.

In rejecting the claim, the JCC relied on Martin v. Carpenter, and ruled that claimant had misrepresented her medical history on her employment application and that the employer had relied upon her misrepresentations to its detriment. In addition, the JCC decided that the employer/servicing agent (E/SA) had established the elements of misrepresentation under Section 440.15(5)(a), Florida Statutes (Supp.1990). In accepting the Martin v. Carpenter /misrepresentation defense, the JCC rejected claimant's argument that the E/SA was estopped or had waived its right to assert the defense by its execution of two stipulations involving payment of those benefits. Alternatively, the JCC specifically rejected each of Fawaz's claims for benefits, even absent any misrepresentation, as will be discussed infra.

Initially, we agree with the JCC that the E/SA did not waive its right to assert the misrepresentation defense. "Waiver is defined as an intentional relinquishment or abandonment of a known right or privilege, or conduct that warrants an inference of the intentional relinquishment of a known right." Destin Sav. Bank v. Summerhouse of FWB, Inc., 579 So.2d 232, 235 (Fla. 1st DCA 1991) (emphasis added). Moreover, waiver cannot be established "unless the party against whom the waiver is invoked was in possession of all the material facts." Fireman's Fund Ins. Co. v. Vogel, 195 So.2d 20, 24 (Fla. 2d DCA 1967).

Admittedly, when the E/SA entered into the first joint stipulation with claimant on June 19, 1989, which the JCC accepted by order dated June 26, 1989, the E/SA was then aware of most of the essential facts upon which it later asserted its defense. The same can be said for the second stipulation, which the parties entered into on February 22, 1990, and the JCC approved on February 28, 1990. At claimant's deposition taken on April 26, 1989, Fawaz testified that she had had back surgery in Massachusetts three or four years previously. At that point she was confronted by the E/SA's attorney with her misrepresentations on the employment application. Claimant merely answered that she had orally informed her supervisors, and named two of them, but this allegation was denied by the two supervisors.

The E/SA had also received information from two of claimant's attending physicians regarding claimant's prior condition before executing the two stipulations. Dr. Richard Lapp 2 testified during his May 16, 1989 deposition that he observed claimant's L-3 compression fracture on an x-ray, and that he obtained a history from claimant wherein she advised that she had received surgery for a back injury while she lived in Massachusetts. Dr. Fred Schroeder's notes of January 23, 1989 indicate that claimant told him she had a broken spine,

Page 495

and his notes of June 13, 1989 state that an x-ray revealed "an old injury," a vertical fracture of L-3. Thus, as indicated above, the record clearly demonstrates that the E/SA was aware before it signed the two stipulations that claimant had sustained a prior back injury, and that claimant had answered several questions regarding her medical history untruthfully on her employment application.

Absent from the record, however, is proof that the E/SA had any firm knowledge of one of the necessary elements for the Martin v. Carpenter defense, namely, a causal connection between the work-related injury and claimant's false representations. 3 For instance, Dr. Lapp, while noting claimant's preexisting back injury, admitted that he was uncertain whether claimant's work-related accident had aggravated her prior condition and that further diagnostic testing needed to be conducted in order to resolve the question. Additionally, Dr. Schroeder did not inform the E/SA before the execution of the stipulations that any aggravation of claimant's prior condition had occurred. Instead, his initial diagnosis was that claimant had sustained a musculoligamentous strain, a condition unrelated to claimant's previous back injury.

Indulging in the presumption that the appellee, as the prevailing party, is entitled to the benefit of all reasonable inferences that can be drawn from the evidence in a light most favorable to it, we consider it apparent from our review of the record that the E/SA lacked complete knowledge before it executed the stipulations that the injuries claimant allegedly suffered in the industrial accident were related to her earlier back injury. Therefore, an essential requisite of the Martin v. Carpenter defense had not yet been confirmed, and because the E/SA was not in possession of all the material facts regarding the defense, the E/SA cannot be said to have waived it. Our conclusion in this regard does not, however, mandate affirmance of the JCC's order of denial.

Even if we were to assume that the E/SA successfully established all the elements necessary to prove the Martin v. Carpenter defense, the E/SA nonetheless had the burden, upon claimant's assertion of estoppel based on the stipulations, to show that the stipulations it had entered into should be set aside. The test therefor is not the same as that necessary to establish waiver. A party may obtain relief from the binding effect of a stipulation only by showing it was induced by "fraud, overreaching, misrepresentation or withholding facts by the adversary or some such element as would render the agreement void." Steele v. A.D.H. Bldg. Contractors, Inc., 174 So.2d 16, 19 (Fla.1965). The party seeking to avoid the stipulation is ordinarily required to file a motion seeking withdrawal of the stipulation supported by an affidavit showing good cause, asserting that the agreement was obtained by fraud, misrepresentation, or mistake of fact. Henrion v. New Era Realty IV, Inc., 586 So.2d 1295, 1298 (Fla. 4th DCA 1991); Lopez v. Dublin Co., 489 So.2d 805, 807 & n. 3 (Fla. 3d DCA 1986); Curr v. Helene Transp. Corp., 287 So.2d 695, 697 (Fla. 3d DCA 1973). The record in the instant case fails to reveal, however, that the E/SA complied with the above rule by filing such a motion. Nevertheless, because the employer's noncompliance was not made an issue below, it is our responsibility to review the record to determine whether the E/SA otherwise met its burden of establishing sufficient evidence to set aside the stipulations. We conclude that it did not.

Only two grounds exist in the case at bar which could conceivably be applied to set aside the parties' agreements: fraud and mistake of fact. Although the evidence clearly supports the JCC's finding that the claimant made a false representation on her employment application, no evidence was produced showing that the two stipulations themselves were procured by fraud. See Steele, Henrion, Lopez, Curr. While claimant asserted in her April 1989 deposition that she had orally informed the employer's supervisors of her prior back

Page 496

injury, notwithstanding her written representation that no prior condition existed, the supervisors denied claimant's assertion. Thus, as of the time of the stipulations in June 1989 and February 1990, the E/SA either knew or should have known that the claimant's representations of having no prior medical condition or injuries were false. As a result of the E/SA's knowledge, the written fraudulent statements on claimant's employment application denying the existence of a prior back condition could have in no way induced the E/SA to enter into the two stipulations following claimant's deposition. Because there was no proof that the stipulations were obtained by fraud, the stipulations may not be set aside on the basis of fraud.

As to the remaining ground possibly applicable to the issue, mistake of fact, the general rule is that a party will be relieved from a stipulation entered into under a mistake as to a material fact, if there has been reasonable diligence exercised to ascertain such fact. On the other hand, if a...

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9 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...Griffin, 654 So.2d 1194, 1196 (Fla. 1st DCA 1995) (invoking en banc procedure to "recede from our decision in Fawaz [v. Florida Polymers, 622 So.2d 492 (Fla. 1st DCA 1993),] to the extent it limits the discretion of the judge of compensation claims in granting relief from stipulations beyon......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...Griffin, 654 So.2d 1194, 1196 (Fla. 1st DCA 1995) (invoking en banc procedure to "recede from our decision in Fawaz [v. Florida Polymers, 622 So.2d 492 (Fla. 1st DCA 1993),] to the extent it limits the discretion of the judge of compensation claims in granting relief from stipulations beyon......
  • Adoption of Baby E.A.W., In re, No. 93-3040
    • United States
    • Court of Appeal of Florida (US)
    • November 30, 1994
    ...this court with a presumption of correctness." Weiss v. Stone, 220 So.2d 403, 406 (Fla. 3d DCA 1969). See also Fawaz v. Florida Polymers, 622 So.2d 492, 495 (Fla. 1st DCA 1993), referencing the indulgence in the "presumption that the appellee, as the prevailing party, is entitled to the ben......
  • Travelers Ins. Co. v. Wells, Nos. 92-2958
    • United States
    • Court of Appeal of Florida (US)
    • November 19, 1993
    ...2d DCA 1985), rev. denied, 482 So.2d 347 (Fla.1986). HARRIS, C.J., and PETERSON, J., concur. --------------- 1 Fawaz v. Florida Polymers, 622 So.2d 492 (Fla. 1st DCA 1993); Grabner v. Florida Unemployment Appeals Commission, 604 So.2d 948 (Fla. 4th DCA 1992); Nelson v. Spiegel, 529 So.2d 31......
  • Request a trial to view additional results
9 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...Griffin, 654 So.2d 1194, 1196 (Fla. 1st DCA 1995) (invoking en banc procedure to "recede from our decision in Fawaz [v. Florida Polymers, 622 So.2d 492 (Fla. 1st DCA 1993),] to the extent it limits the discretion of the judge of compensation claims in granting relief from stipulations beyon......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...Griffin, 654 So.2d 1194, 1196 (Fla. 1st DCA 1995) (invoking en banc procedure to "recede from our decision in Fawaz [v. Florida Polymers, 622 So.2d 492 (Fla. 1st DCA 1993),] to the extent it limits the discretion of the judge of compensation claims in granting relief from stipulations beyon......
  • Adoption of Baby E.A.W., In re, No. 93-3040
    • United States
    • Court of Appeal of Florida (US)
    • November 30, 1994
    ...this court with a presumption of correctness." Weiss v. Stone, 220 So.2d 403, 406 (Fla. 3d DCA 1969). See also Fawaz v. Florida Polymers, 622 So.2d 492, 495 (Fla. 1st DCA 1993), referencing the indulgence in the "presumption that the appellee, as the prevailing party, is entitled to the ben......
  • Travelers Ins. Co. v. Wells, Nos. 92-2958
    • United States
    • Court of Appeal of Florida (US)
    • November 19, 1993
    ...2d DCA 1985), rev. denied, 482 So.2d 347 (Fla.1986). HARRIS, C.J., and PETERSON, J., concur. --------------- 1 Fawaz v. Florida Polymers, 622 So.2d 492 (Fla. 1st DCA 1993); Grabner v. Florida Unemployment Appeals Commission, 604 So.2d 948 (Fla. 4th DCA 1992); Nelson v. Spiegel, 529 So.2d 31......
  • Request a trial to view additional results

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