Hines Elec. v. McClure

• Decision Date: 25 March 1993
• Docket Number: No. 92-2029,92-2029
• Citation: 616 So.2d 132
• Parties: 18 Fla. L. Week. D840 HINES ELECTRIC and Fla. Insurance Guaranty Association, Petitioners, v. John McCLURE, Dick's Drywall, and Claims Center, Respondents.
• Court: Florida District Court of Appeals

Page 132

616 So.2d 132

18 Fla. L. Week. D840

HINES ELECTRIC and Fla. Insurance Guaranty Association Petitioners, v. John McCLURE, Dick's Drywall, and Claims Center Respondents.

No. 92-2029.

District Court of Appeal of Florida First District.

March 25, 1993.

Patrick J. Malone of Vernis and Bowling of Palm Beach, P.A., Jupiter, for petitioners.

Donna L. Schnorr of Goldberg, Goldstein & Buckley, P.A., Fort Myers, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for respondent, John McClure.

Chester H. Budz of D'Agostino & Budz, St. James City, and Diane H. Tutt of Fort Lauderdale, for respondents, Dick's Drywall and Claims Center.

PER CURIAM.

In this workers' compensation case, an employer and carrier petition this court to review by certiorari a nonfinal order of the Judge of Compensation Claims (JCC) regarding venue. We treat the petition as a notice seeking review pursuant to Florida Rule of Workers' Compensation Procedure 4.160(b)(2) and accept jurisdiction.

A 1992 amendment to Rule 4.160 provides that the district court of appeal may review several specified types of nonfinal orders in workers' compensation cases. That rule provides:

(b) Discretionary Jurisdiction. The district court also may review any nonfinal order of a judge that adjudicates the following:

(1) Jurisdiction.

(2) Venue.

(3) Compensability of accidents or occupational diseases.

(4) Insurance coverage.

(5) Discovery matters when it appears the judge's order will cause a party irreparable harm and there is no adequate remedy at law to rectify such harm.

(Emphasis added). ¹ Amendments To Florida Rules of Workers' Compensation Procedure, 603 So.2d 425, 438-439 (Fla.1992) (Amendments). ² The committee note to Rule 4.160(b) states that "[s]ubdivision (b) is derived from Florida Rule of Appellate Procedure 9.130." Id. at 441. Florida Rule of Appellate Procedure 9.130 provides:

(a) Applicability.

(1) This rule applies to review of the non-final orders authorized herein in the district courts of appeal and the circuit courts. Review of other non-final orders in such courts and non-final administrative action shall be by the method prescribed by rule 9.100.

(2) Review of non-final orders in criminal cases shall be as prescribed by rule 9.140.

(3) Review of non-final orders of lower tribunals is limited to those that

(A) concern venue;

(B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions;

(C) determine

(i) the jurisdiction of the person;

(ii) the right to immediate possession of property (iii) the right to immediate monetary relief or child custody in domestic relations matters;

(iv) the issue of liability in favor of a party seeking affirmative relief;

(v) the entitlement of a party to arbitration;

(vi) that a party is not entitled to workers' compensation immunity as a matter of law; or

(vii) that a class should be certified;

(D) grant or deny the appointment of a receiver, and terminate or refuse to terminate a receivership.

(4) Non-final orders entered after final order on motions that suspend rendition are not reviewable; provided that orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in rule 9.110. Other non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule.

(5) Orders entered on motions filed under Florida Rule of Civil Procedure 1.540 are reviewable by the method prescribed by this rule.

(6) Orders that deny motions to certify a class may be reviewed by the method prescribed by this rule.

(7) Review authorized by this rule shall be by the court that has jurisdiction to review the final order in the cause.

We are candidly perplexed by the new workers' compensation rule. As noted, it is derived from Florida Rule of Appellate Procedure 9.130. Rule 9.130 deals with appeals, or review as a matter of right, from certain nonfinal orders in civil cases. Inclusion of the language "may review" in Rule 4.160(b) clearly expresses the intent of the drafters that review not be as a matter of right. ³ In addition, neither the text of the amended rule nor the commentary accompanying its adoption provide guidance as to the correct legal standard to be utilized by this court in determining whether to exercise jurisdiction. The rule itself provides for discretionary review of some orders which are presently reviewable by common law certiorari. It also includes as orders which are reviewable some which are not presently reviewable by certiorari, or otherwise, until after a final order has been entered by the judge of compensation claims (JCC). There is no specific indication of whether the adoption of the amended rule was intended to provide for review of a greater number of orders prior to the ultimate disposition by the JCC, or whether the rule was intended to ease this court's overburdened docket by granting greater flexibility to refuse certain types of cases.

As noted, while the rule itself purports to be discretionary, it is patterned after an appellate rule dealing with review as a matter of right. Neither the amended rule nor the one it is patterned after set forth a procedural mechanism to be utilized by either the parties or this court to address the jurisdictional issue. ⁴ In addition, the amended rule does not address the standard of review which is to be used after jurisdiction is accepted. This rule goes beyond allowing review of certain nonfinal orders in workers' compensation cases. This new rule creates a whole new type of review which did not previously exist under Florida law.

As a result, this court is faced with the unenviable task of determining the procedural and substantive effect of a rule that is unclear, ambiguous and which could have a significant impact on the workload of this court. ⁵

We first address the issue of what cases should be reviewed by this court pursuant to the amended rule. It is possible to argue that it was the intent of the amended rule to expand the interlocutory jurisdiction of this court in workers' compensation proceedings and, therefore, the court should liberally exercise its jurisdiction and grant interlocutory review as a matter of right in all of the situations which are listed in the rule. It may also be argued that since the rule states that it provides for "[d]iscretionary [j]urisdiction," the court has absolute discretion to accept or reject any case without providing guidance to litigants as to which cases are appropriately reviewable prior to a final order being issued. Both positions appear to be extreme, and difficult to support given the actual wording of the rule. Neither one is accepted by this court.

In gleaning the rule's intent, it may be useful to explore the law concerning the reviewability of the types of nonfinal orders listed in rule 4.160(b), Florida Workers' Compensation Rules of Procedure, prior to adoption of the amended rule and of the reviewability of nonfinal orders under Rule 9.130, after which Rule 4.160(b) was allegedly patterned.

The prior system of appellate review in workers' compensation was inflexible. The prior method assured that several types of orders which are now listed in amended Rule 4.160 would be reviewable before entry of a final order, while others would never be reviewable before entry of the final order.

Prior to the adoption of amended Rule 4.160, there was no appellate jurisdiction to review nonfinal orders in workers' compensation cases. Lockheed Space Operations v. Pham, 600 So.2d 1261 (Fla. 1st DCA 1992); Mills Elec. Contractors v. Marthens, 417 So.2d 700 (Fla. 1st DCA 1982), rev. denied, 429 So.2d 6 (Fla.1983). ⁶ Any order which did not resolve all issues ripe for adjudication was considered nonfinal and nonappealable. ESI v. Taylor, 588 So.2d 1017 (Fla. 1st DCA 1991); American Boom & Barrier, Inc. v. Stewart, 592 So.2d 1178 (Fla. 1st DCA 1992). Review of nonfinal orders in compensation cases could only be sought by a petition for writ of certiorari. Lockheed Space Operations, supra. In order to be reviewable by certiorari, a party was required to demonstrate that a nonfinal compensation order: (1) constituted a departure from the essential requirements of law; (2) would cause material harm; and (3) could not be adequately remedied by appeal. Adelman Steel Corp. v. Winter, 610 So.2d 494 (Fla. 1st DCA 1992); see also Vicorp Restaurant, Inc. v. Audi, 510 So.2d 1082 (Fla. 1st DCA 1987, rev. denied, 519 So.2d 988 (Fla.1987). Under this strict standard of review, we had held that orders granting discovery were reviewable, Adelman Steel, supra; Vicorp Restaurant, Inc. supra, while orders denying discovery were not reviewable, Butler Constr. v. Walker, 524 So.2d 691 (Fla. 1st DCA 1988). Similarly, under that standard, we had held that orders transferring venue of cases were generally reviewable. Lockheed, supra; Hoboken Drywall Co. v. Telfair, 417 So.2d 1169 (Fla. 1st DCA 1982); Riley-Stokes v. Pearson, 508 So.2d 1297 (Fla. 1st DCA 1987). Orders which determine compensability and coverage were not reviewable. ESI v. Taylor, supra; Ralston Purina v. Tancak, 508 So.2d 549 (Fla. 1st DCA 1987); J.L. Manta, Inc. v. Ramos, 526 So.2d 919 (Fla. 1st DCA 1988); Kent Ins. Co. v. Hobbs, 421 So.2d 658 (Fla. 1st DCA 1982). ⁷ Where certiorari was found to be inappropriate, many times the determination of jurisdiction was based upon a failure to demonstrate an injury which could not be remedied on appeal from the final order. See ESI v. Taylor, supra; Kent Ins. Co. v. Hobbs, supra (expenditure of money in defense of claim does not constitute irreparable harm). ⁸

We are not sure of the intent of this rule, but it was apparently intended to remove the inflexibility from the determination of whether to review nonfinal orders. ⁹ The rule provides that all of the interlocutory orders which are listed may be reviewed.

This discretion creates a difficult...