Hume v. Thomason, AR-187
| Decision Date | 21 October 1983 |
| Docket Number | No. AR-187,AR-187 |
| Citation | 440 So.2d 441 |
| Parties | Larry HUME, Appellant, v. Betty and Eugene THOMASON, Appellees. |
| Court | Florida District Court of Appeals |
Lawrence H. Samaha, Tampa, for appellant.
Joseph W. Clark and Charles P. Schropp, of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellees.
Claimant Hume appeals the deputy commissioner's order dismissing with prejudice Hume's claim for benefits because he had elected to maintain an action at law for damages on account of his injury, pursuant to section 440.11(1), Florida Statutes (1981). We affirm. 1
When injured, Hume was working as a carpenter remodeling the Thomasons' home. Eugene Thomason, acting as general contractor, was Hume's employer but had failed to secure workers' compensation insurance. 2 Therefore, instead of filing a claim for compensation benefits, Hume pursued a civil remedy in circuit court, alleging the Thomasons had breached their duty to provide a safe work place. The court entered final summary judgment in favor of the Thomasons, but not before Hume had filed a claim with the Division of Workers' Compensation. Upon the final disposition of his civil cause of action by the summary judgment, Hume pursued his workers' compensation claim. The Thomasons successfully defended on the basis that Hume had elected his remedy under section 440.11(1) by way of the action at law, and was thus precluded from thereafter pursuing his claim. We agree.
Section 440.11(1) provides
that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, ..., may elect to claim compensation under this chapter or to maintain an action at law ... for damages on account of such injury ... (emphasis added).
The very language of that section presupposes an inconsistency between the two remedies, which conclusion is incontestable when one considers the very nature of the Workers' Compensation Act which is to designate and define the employer's responsibility to compensate the employee for his or her work related injury, regardless of fault. Section 440.10, Florida Statutes (1981); Matthews v. G.S.P. Corporation, 354 So.2d 1243 (Fla. 1st DCA 1978); Cadencio v. Thompson, 3 FCR 432 (1959). As pointed out in Matthews:
An employee may not elect to declare his injury to have been an accident occurring in the course of his employment and, thereafter, repudiate such position by alleging that the place and conditions of his employment were so dangerous that the injury was not in fact an accident.
354 So.2d at 1244. Therefore, the crux of the issue is really whether Hume's election had matured once the circuit court had rendered final summary judgment. 3
It is held that an election is matured "when the rights of the parties have been materially affected to the advantage of one or the disadvantage of the other," and "[i]t is generally conceded that to be conclusive it must be efficacious to some extent." Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936); Williams v. Duggan, 153 So.2d 726 (Fl...
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Pearson v. Harris
...the rendition of an order on the merits advantageous, or potentially so, to the claimant. More recently, this court in Hume v. Thomason, 440 So.2d 441 (Fla. 1st DCA 1983), held that the doctrine of election of remedies was properly applied to bar a workers' compensation claim where the clai......
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Greene v. Maharaja of India, Inc., BH-88
...v. Harris, 449 So.2d 339 (Fla. 1st DCA 1984), Matthews v. G.S.P. Corporation, 354 So.2d 1243 (Fla. 1st DCA 1978), and Hume v. Thomason, 440 So.2d 441 (Fla. 1st DCA 1983). Additionally, the deputy found that upon the settlement of the case with claimant's coemployees who otherwise would be i......