Kilyn Constr., Inc. v. Pierce

• Decision Date: 04 October 2016
• Docket Number: No. 1D15–5851.,1D15–5851.
• Parties: KILYN CONSTRUCTION, INC. /FRSA SIF, Appellants, v. Dedrick PIERCE, Appellee.
• Court: Florida District Court of Appeals

200 So.3d 259

KILYN CONSTRUCTION, INC. /FRSA SIF, Appellants,

v.Dedrick PIERCE, Appellee.

No. 1D15–5851.

District Court of Appeal of Florida, First District.

Oct. 4, 2016.

Diane H. Tutt of Conroy Simberg, Hollywood, for Appellants.

Paul M. Anderson of Anderson & Hart, P.A., Tallahassee, for Appellee.

PER CURIAM.

In this workers' compensation appeal, Kilyn Construction, Inc., and its insurer (collectively, the “Employer”) challenge the Judge of Compensation Claims' (JCC's) award of specific handicap-accessible housing and automobile insurance. We agree with the Employer that the award was not justified, and we reverse.

I.

After falling from a roof in 2012, Claimant Dedrick Pierce was left confined to a wheelchair, paralyzed below the waist. Earlier litigation—not at issue here—established that the Employer is responsible for providing Pierce handicap-accessible housing and a handicap-accessible van. The Employer purchased Pierce a van and paid the cost of his handicap-accessible apartment (less the cost of his pre-accident housing). For a while, everything was fine. But then Pierce lost his apartment and struggled to find a new arrangement. The Employer offered little or no help, and Pierce eventually found a new home that was substantially more expensive than his earlier one. Pierce also procured a new insurance policy for his van—again, with no help from the Employer.

II.

The current dispute began in May 2015, when Pierce filed a petition for benefits seeking $17,250 for housing. This amount represented six months' prepayment for his proposed new home ($3,500 per month), less $3,750, the six-month value of his pre-accident apartment. Attached to his petition was a signed “Rental and Purchase Agreement” for the proposed new home—a four-bedroom house on approximately four acres of land near the water. The Employer denied the claim, contending res judicata barred the award and that the Employer had provided all the housing benefits due.

Pierce filed a second petition for benefits in August 2015, seeking $4,464 for van insurance. The Employer responded that it would pay a reasonable amount for insurance, but that $4,464 was unreasonable. (The Employer asserted later that a reasonable policy would cost less than $800.)

The JCC ruled in Pierce's favor on both the housing and the insurance, relying heavily on the Employer's failure to assist Pierce:

Because the Carrier took no action, I find the Claimant reasonably acted on his own behalf. Simply stated, the evidence before this Court is devoid of any credible evidence that the Carrier has provided any assistance, much less meaningful or purposeful assistance, to this Claimant to provide handicap-accessible housing, once they were aware of Claimant's situation as clearly outlined in the letters from his attorney.

....

Regarding Claimant's claim for auto insurance, this is another example of the [Employer's] failure to act, despite being requested by Claimant to assist.

The JCC ordered the Employer to pay $17,250 for rent and $4,464 for insurance. That led to this appeal.

III.

A.

The Employer first argues that res judicata precludes Pierce's housing claim. In earlier litigation, Pierce sought an award sufficient to rent a three-bedroom apartment instead of the two-bedroom apartment the Employer previously provided. Pierce lost on that earlier claim after the JCC found Pierce could not explain why he needed the upgrade. In that November 2014 order, the JCC relied on Ramada Inn South Airport v. Lamoureux, 565 So.2d 376, 377 (Fla. 1st DCA 1990)

, and explained that “as set forth in this Court's prior merits order, the [Employer] is obligated to provide handicap- accessible housing to [Pierce]; however, the extent of that obligation requires the [Employer] only to pay the difference in rent between [Pierce's] apartment at the time of the accident and his handicap-accessible apartment.” Pierce did not appeal that order.

In this appeal, the Employer argues that the November 2014 order resolves Pierce's claim here. In the Employer's view, the extent of its monthly obligation was established earlier, and Pierce's failure to appeal bars his claim now.

We review a JCC's ruling on res judicata de novo. See O'Connor v. N. Okaloosa Med. Ctr., 152 So.3d 843, 844 (Fla. 1st DCA 2014)

.

The piecemeal nature of workers' compensation does not preclude application of res judicata. However, this principle only applies when the elements of res judicata are present and the doctrine properly applied.... The determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions.

Smith v. Time Customer Serv., 132 So.3d 841, 843–44 (Fla. 1st DCA 2013)

.

Here, the operative facts in 2015 differed from the operative facts in November of 2014. It is undisputed that Pierce's earlier housing became unavailable, and there was never any guarantee that the monthly amount associated with the earlier award would be forever sufficient to provide adequate housing. Nevertheless, the Employer had a continuing obligation to provide handicap-accessible housing. Because the facts and evidence did change, the JCC correctly rejected the Employer's res judicata defense. We therefore turn to the Employer's alternative claim.

B.

The Employer argues that—res judicata aside—the JCC lacked a basis for entering the housing award. We review a JCC's award of one housing alternative over another for an abuse of discretion, but we review a JCC's fact findings justifying an award for competent substantial evidence. See Peace River Elec. Corp. v. Choate, 417 So.2d 831, 831 (Fla. 1st DCA 1982)

(concluding JCC did not abuse discretion in awarding claimant modular home versus remodeling claimant's existing residence because it was “patently clear from the record ... that nothing short of bulldozing the dwelling would serve to remedy the situation”).

Here, the JCC found that Pierce acted reasonably in securing the four-bedroom house on acreage because the Employer failed to assist Pierce in finding any other place. But the Employer's failure to act does not necessarily make Pierce's proposal a reasonable one, and the JCC's order did not make factual...