Jimenez v. Community Asphalt Corp., 4D06-3262.
| Decision Date | 20 December 2006 |
| Docket Number | No. 4D06-3262.,4D06-3262. |
| Citation | 947 So.2d 532 |
| Parties | Orlando JIMENEZ and Magaly Jimenez, his wife, Appellants, v. COMMUNITY ASPHALT CORP., a Florida corporation, Condotte America, Inc., a Florida corporation, and Rinker Materials of Florida, Inc., a Florida corporation, Appellees. |
| Court | Florida District Court of Appeals |
Henry A. Seiden of the Seiden Law Firm, West Palm Beach, and Philip D. Parrish of Philip D. Parrish, P.A., Miami, for appellants.
No appearance for appellees.
ORDER ON JURISDICTION
Appellant Jimenez was injured when a truck, which was owned by his employer, Rinker, overturned while he was driving it. He brought this suit against his employer, Rinker, and other defendants. His claims against Rinker included the intentional misconduct exception to worker's compensation immunity, a claim which remains pending in the trial court. The court dismissed additional claims Jimenez alleged against Rinker based on spoliation of evidence and a violation of section 440.39(7), Florida Statutes (2002), which requires an employer to cooperate with the employee in the prosecution of claims against third party tortfeasors.
The trial court dismissed with prejudice the spoliation and breach of duty to cooperate claims. The question before us is whether the dismissal of the counts based on spoliation or the statutory violation are appealable, while the tort claim is still pending in the trial court.
Under Mendez v. West Flagler Family Ass'n, 303 So.2d 1 (Fla.1974), an order disposing of a separate and distinct cause of action, which is not interdependent with other claims still pending, is immediately appealable. In Mendez there were separate counts alleged against an insurer, one for fraud arising from the procurement and issuance of a policy, and another for breach of the insurance contract. In holding that the claims were separate and distinct, the Florida Supreme Court pointed out that the fraud claim had to do with the issuance of the policy and was unrelated to the subsequent breach of the policy after it was issued. Mendez required that the initial order disposing of a claim had to be appealed at the time; however, rule 9.110(k), which was passed in response to Mendez, allows the appeal to be taken immediately or at the end of the entire case. Pellegrino v. Horwitz, 642 So.2d 124 (Fla. 4th DCA 1994).
Because the claim still pending below involves a breach of duty by the employer occurring before the truck accident...
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Harrison v. J.P.A. Enterprises, L.L.C.
...304 So.2d at 99. The counts set out in the amended complaint in the present case are interrelated. See Jimenez v. Cmty. Asphalt Corp., 947 So.2d 532, 532-33 (Fla. 4th DCA 2006) (stating that an order is not immediately appealable where, even though it disposes of a separate and distinct cau......
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Rocks v. McLaughlin Eng'g Co.
...either on appeal from the partial final judgment or on appeal from the final judgment in the entire case); Jimenez v. Cmty. Asphalt Corp., 947 So.2d 532, 532-33 (Fla. 4th DCA 2006) (under Mendez order disposing of separate and distinct cause of action interdependent with other claims still ......
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