Hernandez v. United Contractors Corp., 3D99-00569.

• Decision Date: 27 September 2000
• Docket Number: No. 3D99-00569.,3D99-00569.
• Citation: 766 So.2d 1249
• Parties: Maria Minerva HERNANDEZ, etc., et al., Appellants, v. UNITED CONTRACTORS CORP., Appellee.
• Court: Florida District Court of Appeals

766 So.2d 1249

Maria Minerva HERNANDEZ, etc., et al., Appellants, v. UNITED CONTRACTORS CORP., Appellee.

No. 3D99-00569.

District Court of Appeal of Florida, Third District.

September 27, 2000.

Freshman, Freshman & Traitz; Jay M. Levy, Miami, for appellants.

Papy, Weissenborn, Poole & Vraspir and Sheridan K. Weissenborn, Coral Gables, for appellee.

Before COPE and SORONDO, JJ., and NESBITT, Senior Judge.

ON MOTION FOR CLARIFICATION

SORONDO, J.

We grant Appellant's Motion for Clarification on our original opinion. Accordingly, this court's opinion filed July 5, 2000, in this case is withdrawn, and we issue the following in its place.

Maria Minerva Hernandez appeals from the lower court's final summary judgment entered in favor of United Contractors Corp. We reverse.

On August 1, 1995, Ricardo Ariel Hernandez (decedent), worked as a construction laborer for C.A. Associates, Inc. (CA), a subcontractor hired by United to secure material and equipment at a construction site in anticipation of Hurricane Erin's landfall. CA's job was scheduled to end that day. At the end of the day, Craig Davidson, CA's general manager, advised the decedent and his other employees to go home and call after the hurricane rather than come back to the site.

The next day, the decedent returned to the work site and spoke with United's general superintendent, Jack Cook, to see if there was any work. Cook advised him that there was none and thought that the decedent had left the site as he saw his truck heading off the property. The decedent apparently traveled to a remote area of the site away from where he had been working for CA. While there, he was accidently pinned against a dredge by a front-end loader and killed.

Davidson filed a Notice of Injury pursuant to the Workers' Compensation Act, asserting that the decedent was employed by CA from July 28, 1995 until his death on August 2, 1995. In response, CA's workers' compensation insurance carrier filed a denial.

Hernandez, the decedent's common-law wife, filed suit against multiple defendants including United, on behalf of herself, the estate, and her two minor children, Amy and Adrian. During the pendency of the wrongful death action, Hernandez, as personal representative of the decedent's estate, filed a petition seeking workers' compensation death benefits against CA on her own behalf and also on behalf of the children. At mediation, Hernandez and CA's workers' compensation carrier reached a settlement. They entered into a stipulation to discharge any further liability and benefits in exchange for a lump sum payment of $10,000 of workers' compensation death benefits. The terms of the settlement agreement dictated that no admissions were being made by either side and the employer specifically reserved all defenses, including compensability, employer/employee relationship, and course and scope of employment. No guardian ad litem was appointed to represent the children, and the permission of the probate court was not sought with regard to the terms of the stipulation. Hernandez executed an affidavit averring that she was the surviving spouse of the decedent, who sustained a fatal injury while working for CA. The Judge of Compensation Claims (JCC) approved the settlement and ordered the release of the employer and carrier from liability for all workers' compensation benefits with no mention of the minor children.

Thereafter, United moved for summary judgment in the wrongful death action, asserting that it was immune from liability in tort as the decedent's statutory employer pursuant to section 440.10(1)(b), Florida Statutes (1995). At the hearing on the motion, Hernandez contended that she had not stipulated in the settlement that the accident had arisen out of the course and scope of the decedent's employment and that the minor children did not receive any compensation and had not accepted any benefits from the workers' compensation carrier. The trial court entered final summary judgment in favor of United with regard to all claims. Hernandez appeals.

Hernandez raises four issues on appeal, the first two relating to the minor children and the other two relating to herself. As concerns the children, Hernandez argues the following: 1) The minor children did not elect the remedy of workers' compensation because there was no evidence that they received or were to receive any of the death benefits paid by the workers' compensation carrier. The order approving the settlement was completely silent as to the children and contained no allocation of the settlement between Hernandez and the children. 2) Any settlement of the workers' compensation claim did not bind the minor children when the settlement had not been approved by the probate court. The $10,000 workers' compensation settlement deprived the minor children of a portion of a potential settlement in the tort action in which an offer of six figures had been made. No guardian was appointed to represent the children in the workers' compensation proceeding. Absent a determination that the settlement was in the minor children's best interest, the settlement was invalid.

As concerns herself, Hernandez contends in her third point on appeal that the summary judgment should be reversed because there is a genuine issue of material fact as to whether the decedent was engaged within the course and scope of his employment with CA at the time of his death. Finally, Hernandez's fourth argument on appeal claims that the settlement of the workers' compensation claim between herself and CA was a matter of convenience to both parties and did not constitute an election of remedies because she had no conscious intent to make an election of remedies and waive other rights.

Because we find it dispositive, we address Hernandez's fourth claim first. The doctrine of election of remedies "... is an application of the doctrine of estoppel and provides that the one electing should not later be permitted to avail himself of an inconsistent course." Williams v. Robineau, 124 Fla. 422,...