Ferraro v. Marr, 85-2121
| Decision Date | 20 June 1986 |
| Docket Number | No. 85-2121,85-2121 |
| Parties | 11 Fla. L. Weekly 1399 John FERRARO, Appellant, v. Robert MARR, Appellee. |
| Court | Florida District Court of Appeals |
Gary W. Nicholson of Carson, Guemmer and Nicholson, Tampa, for appellant.
James Breslin, St. Petersburg, for appellee.
This is the second appearance of this case before this court. In the prior appeal, Ferraro v. Marr, 467 So.2d 809 (Fla. 2d DCA 1985), we reviewed a judgment awarding plaintiff Robert Marr damages for personal injuries he sustained as a result of the negligent operation of a motor vehicle by defendant John Ferraro, his fellow employee. The only serious issue raised in that appeal was whether the defendant was immune from suit because the plaintiff had received workers' compensation benefits from the insurance carrier for Hutto Auto Sales, the parties' employer. That issue is before us once again.
In the prior litigation, the trial judge refused to permit the defendant to mention workers' compensation benefits to the jury. Therefore, the defendant proffered evidence outside the jury's presence that the plaintiff had received such benefits. Plaintiff, in turn, proffered his own testimony that the signature on the workers' compensation application form was not his own. Moreover, plaintiff's attorney stated that when he determined plaintiff's accident occurred outside the scope of employment, the workers' compensation proceedings were halted. The jury concluded that at the time of the accident defendant was acting in furtherance of the employer's business but plaintiff was not. The jury also found that defendant's negligence was the legal cause of the accident. The trial court then entered final judgment against defendant. Ferraro, 467 So.2d at 810-811.
Defendant moved for a new trial. He sought to introduce plaintiff's workers' compensation file. The proffered file showed that the plaintiff had signed a workers' compensation claim for benefits form. The file also contained an order approving a stipulation between the plaintiff's attorney and the insurance carrier's counsel. This stipulation recited that the plaintiff's accident arose out of, and in the course and scope of, his employment. The trial court refused defendant's request and denied the motion for new trial. Ferraro, 467 So.2d at 811.
In defendant's prior appeal, we reversed the judgment and remanded the case for the trial court "to determine in light of all pertinent evidence whether the plaintiff's conduct with respect to workers' compensation constituted an election of remedies or an estoppel." Ferraro, 467 So.2d at 813.
On remand, the trial judge conducted an evidentiary hearing. Plaintiff admitted he knowingly signed a claim for workers' compensation benefits despite his awareness that he was pursuing litigation against the defendant. Likewise, plaintiff's attorney acknowledged signing the above stipulation.
Despite the foregoing evidence, the trial judge concluded that the plaintiff's conduct did not constitute an election, nor was plaintiff estopped from contending he was not entitled to workers' compensation benefits. Thus, the judge reinstated the final judgment in favor of the plaintiff. This second appeal by defendant ensued.
As the basis for the decision, the trial judge reasoned that...
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Chiang v. Wildcat Groves, Inc.
...sue his employer upon a theory under which he would not be entitled to workers' compensation), appeal after remand, Ferraro v. Marr, 490 So.2d 188, 189 (Fla. 2d DCA) (uncontradicted evidence of injured employee's application and receipt of workers' compensation benefits and his advised stip......
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Martin Electronics, Inc. v. Jones, 1D03-4091.
...166, 167 (Fla. 2d DCA 2002); Michael v. Centex-Rooney Constr. Co., Inc., 645 So.2d 133, 135 (Fla. 4th DCA 1994); Ferraro v. Marr, 490 So.2d 188, 189 (Fla. 2d DCA 1986); Ferguson v. Elna Elec., Inc., 421 So.2d 805, 806 (Fla. 3d DCA Our own holding in Matthews v. G.S.P. Corp., 354 So.2d 1243 ......
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Lowry v. Logan, 94-76
...v. Oxford Development Co., 457 So.2d 1388 (Fla. 3d DCA 1984), pet. for rev. denied, 467 So.2d 1000 (Fla.1985). The case of Ferraro v. Marr, 490 So.2d 188 (Fla. 2d DCA), rev. denied, 496 So.2d 143 (Fla.1986), upon which the trial court relied in granting summary judgment below, is consistent......
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Mandico v. Taos Const., Inc.
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