Lowry v. Logan, No. 94-76

CourtCourt of Appeal of Florida (US)
Writing for the CourtVAN NORTWICK; MICKLE; KAHN; KAHN
Citation650 So.2d 653
Decision Date09 February 1995
Docket NumberNo. 94-76
Parties20 Fla. L. Weekly D363 Michael LOWRY, Appellant, v. Harold G. LOGAN and Janelle Jose Watson, Appellees.

Page 653

650 So.2d 653
20 Fla. L. Weekly D363
Michael LOWRY, Appellant,
v.
Harold G. LOGAN and Janelle Jose Watson, Appellees.
No. 94-76.
District Court of Appeal of Florida,
First District.
Feb. 9, 1995.

Page 654

Jeffrey P. Gill of Bridgers, Gill & Holman, Pensacola, for appellant.

Larry Hill of Moore, Hill, Westmoreland, Hook & Bolton, P.A., Pensacola, for appellees.

VAN NORTWICK, Judge.

Michael Lowry appeals a final summary judgment entered in his negligence suit against appellees, his alleged employers. In its order granting summary judgment, the trial court ruled, as a matter of law, that Lowry's receipt of workers' compensation benefits both before and for three months after filing suit constituted an election of remedies which barred his tort action. The trial court acknowledges in its order that disputed fact issues remain concerning whether Lowry was an employee or an independent contractor and whether, if Lowry was an employee, he was acting within the course and scope of his employment at the time of his accident. Nevertheless, the trial court concludes that, in view of Lowry's election of remedies, these issues of fact do not prevent resolution of this case by summary judgment. We disagree and reverse.

Lowry resided at a mobile home park owned by the appellee Janelle Jose Watson and managed by appellee Harold G. Logan, Watson's son. In approximately October 1991, Lowry was hired by the appellees to perform maintenance work at the mobile home park. He worked an average of approximately 20 hours a week at a wage of six dollars per hour. When he began working for appellees the parties signed an agreement which provided that Lowry was acting as an independent contractor and not an employee of appellees.

On August 21, 1992, Lowry was a passenger in a truck owned by Logan and operated by Watson, when, while returning from a trip to purchase building materials, he was injured in a motor vehicle accident. Subsequent to the accident, Logan filed a notice of injury with appellees' workers' compensation carrier. Lowry did not sign the notice of injury and never filed a claim for benefits. According to him, he was under the impression

Page 655

that he was not covered by workers' compensation in his employment with appellees. Nevertheless, Lowry's medical bills and temporary total disability benefits were paid by the workers' compensation carrier.

For a brief period, Lowry was placed in a temporary partial disability status by the carrier, at which point he was required to fill out and sign temporary partial/wage loss forms in order to receive this class of benefits. Shortly thereafter, he was returned to temporary total disability status, and he continued to receive temporary total disability benefits until a few months after this negligence suit was filed.

In this appeal, appellees first contend that, not withstanding the unresolved factual issues concerning whether Lowry was an independent contractor or whether Lowry was injured in the scope and course of his employment, the trial court could have determined as a matter of law that appellees were entitled to summary judgment because appellees had secured a workers' compensation insurance policy which covered Lowry. They argue that under section 440.04(2), Florida Statutes (1991), the acceptance of a workers' compensation policy of insurance by the employer and the writing of it by a carrier constitute a waiver of the exclusion of an independent contractor from the Workers' Compensation Act and operates to bring the independent contractor under its coverage. Therefore, appellees argue that it is not material whether Lowry was an independent contractor or whether he was injured in the course and scope of employment since they exercised their unilateral right to acquire workers' compensation coverage for an independent contractor under section 440.04(2).

The record below is silent as to why the workers' compensation carrier, who is not a party to these proceedings, accepted compensability of this accident. Ordinarily, section 440.02(13)(d)1 excludes an independent contractor from the definition of an "employee" under the Workers' Compensation Act. As a result, the party hiring such an independent contractor is not required to obtain workers' compensation coverage for the independent contractor and is not entitled to the immunity from civil suit for work-related injuries suffered by the independent contractor. Sec. 440.11, Fla.Stat. (1991). Under section 440.04, however, a party hiring a person who is excluded from the definition of "employee" under the act may elect to waive such exclusion and accept the provisions of Chapter 440 by giving notice of such election to the Division of Workers' Compensation, as provided in section 440.05, or by obtaining a policy of insurance securing the benefits of Chapter 440 to such person. Allen v. Estate of Carman, 281 So.2d 317, 322-23 (Fla.1973). Although appellees contend that they have complied with section 440.04 by purchasing a policy or contract of insurance securing the benefits of Chapter 440 with respect to Lowry, there is no evidence in the record of either an insurance policy containing an affirmative election by appellees and their carrier to cover Lowry, notwithstanding his alleged independent contractor status and the question of whether he was injured outside the scope and course of his employment, or a mailed notice of such election to the Division of Workers' Compensation pursuant to section 440.05. Accordingly, there is no factual basis in the record on which appellees can establish a basis for reliance on section 440.04(2) to sustain the summary judgment.

Turning to the primary basis for the trial court's ruling, that Lowry made a conscious choice of remedies and elected and received workers' compensation benefits as his exclusive remedy, we find that summary judgment was prematurely granted, and the cases 1 upon which the trial court relied for its order are all distinguishable.

Before turning to an analysis of these cases, however, it is necessary to briefly discuss the development of the doctrine of election of remedies in Florida. This doctrine "... is an application of the doctrine of estoppel and provides that the one electing should not later be permitted to avail himself of an inconsistent course." Williams v. Robineau, 124 Fla. 422, 168 So. 644, 646 (1936). As the Supreme Court of Florida explained in Robineau, 168 So. at 646:

Page 656

An election of remedies presupposes a right to elect. It is a choice shown by an overt act between two inconsistent rights, either of which may be...

To continue reading

Request your trial
22 practice notes
  • Chiang v. Wildcat Groves, Inc., No. 96-04531
    • United States
    • Court of Appeal of Florida (US)
    • 15 Octubre 1997
    ...pursues and receives workers' compensation benefits. See Mandico v. Taos Constr., Inc., 605 So.2d 850 (Fla.1992); Lowry v. Logan, 650 So.2d 653 (Fla. 1st DCA), review denied, 659 So.2d 1087 (Fla.1995); see also Matthews v. G.S.P. Corp., 354 So.2d 1243, 1244 (Fla. 1st DCA 1978) (provisions o......
  • Jones v. Martin Electronics, Inc., No. SC04-1538.
    • United States
    • United States State Supreme Court of Florida
    • 15 Junio 2006
    ...852 So.2d 430, 432 (Fla. 5th DCA 2003); Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000); Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st Page 1106 1995); Wishart, 573 So.2d at 184. In Wheeled Coach Industries, Inc. v. Annulis, 852 So.2d 430 (Fla. 5th DCA 2003), t......
  • Vause v. Bay Medical Center, No. 94-549
    • United States
    • Court of Appeal of Florida (US)
    • 30 Diciembre 1996
    ...remedy to a determination on the merits or to final settlement so as to give rise to an election of remedies defense. See Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st DCA), rev. denied, 659 So.2d 1087 (Fla.1995). Consequently, the defense could not have been the basis for dismissal of the c......
  • Martin Electronics, Inc. v. Jones, No. 1D03-4091.
    • United States
    • Court of Appeal of Florida (US)
    • 18 Junio 2004
    ...852 So.2d 430, 433 (Fla. 5th DCA 2003); Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000); Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st DCA 1995); Wright v. Douglas N. Higgins, Inc., 617 So.2d 460, 462 (Fla. 3d DCA 1993); Velez v. Oxford Dev. Co., 457 So.2d 1388......
  • Request a trial to view additional results
22 cases
  • Chiang v. Wildcat Groves, Inc., No. 96-04531
    • United States
    • Court of Appeal of Florida (US)
    • 15 Octubre 1997
    ...pursues and receives workers' compensation benefits. See Mandico v. Taos Constr., Inc., 605 So.2d 850 (Fla.1992); Lowry v. Logan, 650 So.2d 653 (Fla. 1st DCA), review denied, 659 So.2d 1087 (Fla.1995); see also Matthews v. G.S.P. Corp., 354 So.2d 1243, 1244 (Fla. 1st DCA 1978) (provisions o......
  • Jones v. Martin Electronics, Inc., No. SC04-1538.
    • United States
    • United States State Supreme Court of Florida
    • 15 Junio 2006
    ...852 So.2d 430, 432 (Fla. 5th DCA 2003); Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000); Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st Page 1106 1995); Wishart, 573 So.2d at 184. In Wheeled Coach Industries, Inc. v. Annulis, 852 So.2d 430 (Fla. 5th DCA 2003), t......
  • Vause v. Bay Medical Center, No. 94-549
    • United States
    • Court of Appeal of Florida (US)
    • 30 Diciembre 1996
    ...remedy to a determination on the merits or to final settlement so as to give rise to an election of remedies defense. See Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st DCA), rev. denied, 659 So.2d 1087 (Fla.1995). Consequently, the defense could not have been the basis for dismissal of the c......
  • Martin Electronics, Inc. v. Jones, No. 1D03-4091.
    • United States
    • Court of Appeal of Florida (US)
    • 18 Junio 2004
    ...852 So.2d 430, 433 (Fla. 5th DCA 2003); Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000); Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st DCA 1995); Wright v. Douglas N. Higgins, Inc., 617 So.2d 460, 462 (Fla. 3d DCA 1993); Velez v. Oxford Dev. Co., 457 So.2d 1388......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT