Mandico v. Taos Const., Inc., No. 76766

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM; KOGAN, J., concurs in part and dissents in part with an opinion, in which BARKETT, C.J., and SHAW; KOGAN; BARKETT, C.J., and SHAW
Citation605 So.2d 850
Docket NumberNo. 76766
Decision Date09 July 1992
Parties17 Fla. L. Weekly S445, 17 Fla. L. Weekly S626 Anthony MANDICO, Petitioner, v. TAOS CONSTRUCTION, INC., et al., Respondents.

Page 850

605 So.2d 850
17 Fla. L. Weekly S445, 17 Fla. L. Weekly S626
Anthony MANDICO, Petitioner,
v.
TAOS CONSTRUCTION, INC., et al., Respondents.
No. 76766.
Supreme Court of Florida.
July 9, 1992.
Rehearing Denied Oct. 8, 1992.

L. Barry Keyfetz of the Law Offices of L. Barry Keyfetz, Miami, for petitioner.

Neil Rose and Steven J. Chackman of Conroy, Simberg & Lewis, P.A., Hollywood, for respondents.

Page 851

L. Barry Keyfetz of the Law Offices of L. Barry Keyfetz, Miami, amicus curiae for the Academy of Florida Trial Lawyers.

PER CURIAM.

We have for review Taos Construction, Inc. v. Mandico, 566 So.2d 910 (Fla. 4th DCA1990), in which the district court certified the following questions as being of great public importance:

MAY A GENERAL CONTRACTOR, WHO PROVIDES WORKER'S COMPENSATION COVERAGE FOR AN INDEPENDENT CONTRACTOR BY DEDUCTING THE COVERAGE PREMIUMS FROM PAYMENTS DUE THAT INDEPENDENT CONTRACTOR, CLAIM IMMUNITY FROM THE INDEPENDENT CONTRACTOR'S CIVIL SUIT FOR PERSONAL INJURY UNDER THE WORKER'S COMPENSATION STATUTE WHERE THE INDEPENDENT CONTRACTOR CLAIMED AND RECOVERED WORKER'S COMPENSATION BENEFITS?

MAY TRIAL COURT ORDERS, DENYING IMMUNITY FROM CIVIL SUIT UNDER THE WORKER'S COMPENSATION STATUTE, BE REVIEWED BY A WRIT OF PROHIBITION?

566 So.2d at 911. We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution.

In June 1984, petitioner, Anthony Mandico, was injured while working on a construction project as an independent contractor for respondent Taos Construction, Inc. (Taos). The injury occurred when scaffolding fell on Mandico due to the alleged negligence of respondent Willie Philmore, one of Taos' employees. Although Mandico maintains that "over protest," Taos "unilaterally deducted" from his salary seven percent for worker's compensation insurance, it appears that Mandico entered into a written agreement with Taos that provided if he did not have a worker's compensation insurance policy of his own, seven percent of his gross weekly wages would be deducted for such insurance. It is undisputed that Mandico applied for and received benefits under the worker's compensation policy procured on his behalf by Taos.

However, Mandico, later filed a negligence action against Taos and Philmore. Mandico alleged that Taos and its employee had no immunity under section 440.11(1), Florida Statutes (1983), 1 because he was an independent contractor from whose wages Taos had "unilaterally extracted" the cost of the premium for worker's compensation insurance in violation of section 440.21, Florida Statutes (1983). In their answer to the complaint, the respondents denied negligence and raised as an affirmative defense immunity from liability under section 440.11. Prior to trial, the respondents moved for summary judgment, arguing that the record demonstrated the absence of a genuine issue of material fact regarding the defense of immunity because Taos had procured a workers' compensation policy under which Mandico had claimed and received benefits. The trial court denied the motion and respondents filed a petition for common law certiorari in the district court. 2

After asking the parties to address whether prohibition was proper, the district court treated the petition as a petition for

Page 852

writ of prohibition. Reasoning that "[s]ince on this record it is clear that petitioners are immune from suit for these injuries, the circuit court is without jurisdiction to proceed further against these petitioners," the district court granted the petition and quashed the order denying summary judgment. 566 So.2d at 911. On motion for rehearing, the district court added the certified questions set forth above. Id.

The first question certified presents two distinct issues. The first deals with whether a general contractor who employs an independent contractor insulates itself from common law liability pursuant to section 440.11 when it procures compensation coverage for the independent contractor by deducting the premiums for the coverage from wages due the independent contractor in accordance with the parties' contract. The second deals with whether one who claims and receives workers' compensation benefits has made an election of remedies or is otherwise estopped from bringing a common law action against an employer. We address each issue separately.

First, although it is not apparent from a simple reading of the Workers' Compensation Law, our review of the applicable provisions of the Law leads us to the conclusion that an otherwise unimmune general contractor brings itself within the safeguards of section 440.11 when, as per the parties' contract, it procures workers' compensation coverage for the benefit of an independent contractor by deducting the coverage premiums from payments due the independent contractor.

Pursuant to section 440.02(11)(d)1, Florida Statutes (1983), 3 an independent contractor is ordinarily excluded from the provisions of the Workers' Compensation Law. Strickland v. Al Landers Dump Trucks, Inc., 170 So.2d 445, 446 (Fla.1964). Therefore, the employer of an independent contractor is not required to secure to such an excluded individual the payment of workers' compensation and thus is not entitled to section 440.11 immunity from civil suit for work-related injuries suffered by the independent contractor. §§ 440.10, 440.11, Fla.Stat. (1983). However, pursuant to section 440.04, Florida Statutes (1983), 4 a person who is not otherwise considered an "employee" covered under chapter 440, but for whose benefit a contract of workers' compensation insurance has been secured, may be brought within the operation of the chapter by the acceptance of a policy of insurance by the employer and the writing of such policy by the carrier. Allen v. Estate of Carman, 281 So.2d 317, 322 (Fla.1973); Strickland v. Al Landers Dump Trucks, Inc., 170 So.2d at 446. As we have recognized, the purpose and effect of section 440.04 is to "empower" an employer having in its employ one who is excluded or exempted from the operation of the Law to voluntarily assume the obligations and privileges of the Workers' Compensation Law in relation to that individual and thereby insulate itself from common law liability pursuant to section 440.11. Allen, 281 So.2d at 322.

Page 853

We cannot agree with Mandico that the benefits of chapter 440 are not secured for one excluded from the definition of "employee" simply because, in accordance with the parties' contract, a general contractor deducts the cost of the premiums for the workers' compensation policy from payments due the excluded individual. Cf. id. (policy secured the benefits of Workers' Compensation Law where policy was procured with funds deducted from independent contractor's commission). It is true that section 440.21(1), Florida Statutes (1983), specifically provides that any agreement by an employee to pay any portion of the premium for workers' compensation insurance paid by the employer is invalid and any employer who makes a deduction for such purpose from the pay of any employee entitled to the benefits of the chapter is guilty of a misdemeanor. See Barragan v. City of Miami, 545 So.2d 252 (Fla.1989). However, as noted above, an independent contractor is specifically excluded from the definition of "employee" as used in chapter 440. § 440.02(11)(d) 1. Therefore, we conclude that the section 440.21 prohibition does not apply to such agreements by an independent contractor.

Moreover, an independent contractor who enters into an agreement whereby coverage premiums will be deducted from payments due, if the independent contractor does not have workers' compensation coverage, in effect elects to be covered and thereby bound by the provisions of chapter 440, including the exclusiveness of liability...

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201 practice notes
  • Florida House of Representatives v. Crist, No. SC07-2154.
    • United States
    • United States State Supreme Court of Florida
    • 3 Julio 2008
    ...tribunal from acting in excess of jurisdiction but not to prevent an erroneous exercise of jurisdiction." Mandico v. Taos Constr., 605 So.2d 850, 854 (Fla.1992) (emphasis supplied). Quo warranto is also an extraordinary writ, and therefore the strict interpretation applicable to the writ of......
  • Haridopolos v. Citizens for Strong Sch., Inc., No. 1D10–6285.
    • United States
    • Court of Appeal of Florida (US)
    • 6 Enero 2012
    ...is intended to be outside their jurisdiction except that which clearly and specially appears so to be.’ ” Mandico v. Taos Constr., Inc., 605 So.2d 850, 854 (Fla.1992) (quoting English v. McCrary, 348 So.2d 293, 297 (Fla.1977)). The petitioners' apprehension at the prospect of burdensome dis......
  • Haridopolos v. Citizens for Strong Sch., Inc., No. 1D10–6285.
    • United States
    • Court of Appeal of Florida (US)
    • 6 Enero 2012
    ...is intended to be outside their jurisdiction except that which clearly and specially appears so to be.’ ” Mandico v. Taos Constr., Inc., 605 So.2d 850, 854 (Fla.1992) (quoting English v. McCrary, 348 So.2d 293, 297 (Fla.1977)). The petitioners' apprehension at the prospect of burdensome dis......
  • O'Donnell's Corporation v. Ambroise, Case No. 5D03-324 (Fla. App. 5th Dist. 11/7/2003), Case No. 5D03-324.
    • United States
    • Court of Appeal of Florida (US)
    • 7 Noviembre 2003
    ...to prevent an Page 4 impending injury where there is no other appropriate and adequate legal remedy." Mandico v. Taos Constr., Inc., 605 So. 2d 850, 854 (Fla. 1992). Thus, prohibition is the appropriate remedy to prevent an inferior tribunal from acting in excess of jurisdiction but not to ......
  • Request a trial to view additional results
202 cases
  • Florida House of Representatives v. Crist, No. SC07-2154.
    • United States
    • United States State Supreme Court of Florida
    • 3 Julio 2008
    ...tribunal from acting in excess of jurisdiction but not to prevent an erroneous exercise of jurisdiction." Mandico v. Taos Constr., 605 So.2d 850, 854 (Fla.1992) (emphasis supplied). Quo warranto is also an extraordinary writ, and therefore the strict interpretation applicable to the writ of......
  • Haridopolos v. Citizens for Strong Sch., Inc., No. 1D10–6285.
    • United States
    • Court of Appeal of Florida (US)
    • 6 Enero 2012
    ...is intended to be outside their jurisdiction except that which clearly and specially appears so to be.’ ” Mandico v. Taos Constr., Inc., 605 So.2d 850, 854 (Fla.1992) (quoting English v. McCrary, 348 So.2d 293, 297 (Fla.1977)). The petitioners' apprehension at the prospect of burdensome dis......
  • Haridopolos v. Citizens for Strong Sch., Inc., No. 1D10–6285.
    • United States
    • Court of Appeal of Florida (US)
    • 6 Enero 2012
    ...is intended to be outside their jurisdiction except that which clearly and specially appears so to be.’ ” Mandico v. Taos Constr., Inc., 605 So.2d 850, 854 (Fla.1992) (quoting English v. McCrary, 348 So.2d 293, 297 (Fla.1977)). The petitioners' apprehension at the prospect of burdensome dis......
  • O'Donnell's Corporation v. Ambroise, Case No. 5D03-324 (Fla. App. 5th Dist. 11/7/2003), Case No. 5D03-324.
    • United States
    • Court of Appeal of Florida (US)
    • 7 Noviembre 2003
    ...to prevent an Page 4 impending injury where there is no other appropriate and adequate legal remedy." Mandico v. Taos Constr., Inc., 605 So. 2d 850, 854 (Fla. 1992). Thus, prohibition is the appropriate remedy to prevent an inferior tribunal from acting in excess of jurisdiction but not to ......
  • Request a trial to view additional results

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