Hill v. Gregg, Gibson & Gregg, Inc., 41485

Decision Date22 March 1972
Docket NumberNo. 41485,41485
Citation260 So.2d 193
CourtFlorida Supreme Court
PartiesFred Wayne HILL, Sr., Petitioner, Cross-Respondent, v. GREGG, GIBSON & GREGG, INC., et al., Respondents, Cross-Petitioners.

Dudley Burton, of Burton & Burton, P.A., Miami, for petitioner, cross-respondent.

David, J. Williams, of Langston & Massey, Lakeland, for respondents, cross-petitioners.

Kenneth H. Hart, Jr., Tallahassee, for Fla. Industrial Relations Comm., respondent.

ERVIN, Acting Chief Justice.

We have for review on petition and cross-petition for writ of certiorari an order of the Industrial Relations Commission affirming the Judge of Industrial Claims' denial of Petitioner Fred Wayne Hill, Sr.'s, workmen's compensation claim on the ground his injury did not arise out of, or in the course of, his employment.

Petitioner and his retarded son were both employed by Respondent Gregg, Gibson & Gregg, Inc. The accident giving rise to this action occurred when Petitioner went to his employer's project superintendent's office to discuss his son's wages. The office was several miles from Petitioner's job site, and he went to the office approximately one hour before the beginning of his shift. The discussion turned into an argument, and the project superintendent fired both Petitioner and his son and ordered them off the premises. As they were leaving, the superintendent severely assaulted Petitioner, resulting in injuries and disability which prompted this claim for compensation benefits, as well as a lawsuit filed by Petitioner against the superintendent and the employer. The civil action was settled for $20,000, which was paid to Petitioner by or on the account of the superintendent and Gregg, Gibson & Gregg, Inc., and its insurance carrier. No contention is made here by employer or its carrier that it will be entitled by virtue of F.S. Section 440.39, F.S.A., to any subrogation from the employee's recovery of the $20,000 because of compensation benefits that may be awarded pursuant to the final result herein.

After the settlement had been agreed upon, but before it was consummated, Petitioner filed the workmen's compensation claim. It was denied by the Judge of Industrial Claims on two grounds: (1) because the accident did not arise out of or in the course of Petitioner's employment since the assault took place several miles from the place where he performed his duties for the employer, 30 minutes before the beginning of his work day, and while he was on a personal mission; and (2) because the claim was barred by the doctrine of election of remedies which estopped Petitioner from benefiting from two inconsistent remedies.

The Industrial Relations Commission unanimously agreed that the Judge erred in holding the claim barred by the election of remedies doctrine. The Commission said the 1951 amendment to F.S. Section 440.39, F.S.A., abolished the election of remedies doctrine making it possible for injured employees to 'claim workmen's compensation benefits and at the same time institute suit against a third party tort-feasor.' Fidelity and Casualty Co. of New York v. Bedingfield, Fla.1952, 60 So.2d 489. The Commission, however, split 2-1 on the issue of whether the injury occurred in the scope and course of the claimant's employment. The majority concluded it had not because 'the claimant was involved in an altercation with a man not his superintendent, which altercation arose from an argument concerning his son's wages, and at a place where the claimant did not perform his usual duties. It also appears that he was on the premises before he was supposed to report for work. There is nothing in the record to show that the claimant was in any way engaged in benefiting his employer.' The dissenting Commissioner held the injury compensable saying 'it is elementary that the discharge of an employee is an essential part of the employment.'

We agree with the Industrial Relations Commission's conclusion that F.S. Section 440.39(1), F.S.A., permits lawsuits against third party tort-feasors as well as workmen's compensation claims for injuries arising out of the same accident. Fidelity and Casualty Co. of New York v. Bedingfield, supra. In this connection we note the injuries inflicted upon Petitioner resulted from the assault of the superintendent, a third party. We do not agree, however, with the majority's conclusion that Petitioner's injury was not compensable.

The Workmen's Compensation Act, Chapter 440,...

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    ...Commission, 76 Ariz. 105, 259 P.2d 547 (1953); Peterson v. Moran, 111 Cal.App.2d 766, 245 P.2d 540 (1952); Hill v. Gregg, Gibson & Gregg, 260 So.2d 193 (Fla.1972); Woodward v. St. Joseph's Hospital of Atlanta, 160 Ga.App. 676, 288 S.E.2d 10 (1981); Carter v. Lanzetta, 249 La. 1098, 193 So.2......
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