Mobil v. Trask

• Decision Date: 29 January 1985
• Docket Number: No. AM-338,AM-338
• Citation: 10 Fla. L. Weekly 261,463 So.2d 389
• Parties: 10 Fla. L. Weekly 261, 10 Fla. L. Weekly 305 Lapinell MOBIL and Fireman's Fund American Insurance Companies, Petitioners, v. The Honorable David L. TRASK, Deputy Commissioner, State of Florida, Department of Labor and Employment Security, Division of Workers' Compensation, District K, Respondent.
• Court: Florida District Court of Appeals

Page 389

463 So.2d 389

10 Fla. L. Weekly 261, 10 Fla. L. Weekly 305

Lapinell MOBIL and Fireman's Fund American Insurance Companies, Petitioners, v. The Honorable David L. TRASK, Deputy Commissioner, State of Florida, Department of Labor and Employment Security, Division of Workers' Compensation, District K, Respondent.

No. AM-338.

District Court of Appeal of Florida First District.

Jan. 29, 1985.

Rehearing Denied March 8, 1985.

Barry A. Pemsler of Richard, Tharp & Pemsler, Miami, for petitioners.

Jerold Feuer, Miami, for claimant, Carlos Miguel Coronardo.

ON PETITION FOR WRIT OF PROHIBITION

PER CURIAM.

Petitioner (employer/carrier) has filed a petition for writ of prohibition seeking to preclude the deputy commissioner from presiding over further proceedings regarding a claim of Carlos Coronado. The deputy denied petitioner's "motion to recuse," filed pursuant to § 38.10, Florida Statutes (1981). We deny the petition.

Claimant was injured in a shooting incident which occurred at the gas station where he was employed as an attendant. A hearing was conducted by the deputy on a claim for compensation benefits. Apparently a fact in issue at the hearing was whether the shooting was related to claimant's employment or was the result of a personal dispute between claimant and the attacker. Petitioner's motion alleged the deputy made certain remarks during the course of the hearing which indicated he had pre-judged the case and was prejudiced against petitioner.

The subject remarks occurred prior to completion of the testimony of claimant before the employer/carrier presented its witnesses. According to affidavits submitted in support of the motion, the deputy went off the record, turned to employer/carrier's attorney and said:

I don't see how you can't find this accident compensable. If I was sitting at my desk and a man came in here with a gun and shot me, it is an on-the-job accident.

The motion was accompanied by a "deposition/statement" of the court reporter which recited the above statement made when the proceedings were "off the record," an affidavit of the movant (the employer/carrier's representative at the hearing), supporting affidavits of two citizens of the county, and a certificate of good faith executed by petitioner's attorney.

The deputy denied the motion on grounds "that the facts alleged, assuming them to be true and taken in the best light to the moving party are legally insufficient to allow this deputy commissioner to enter an order of recusal." On denial of the motion, the employer/carrier filed the instant petition for writ of prohibition.

A petition for writ of prohibition is an appropriate vehicle to prevent judicial action when a judge or deputy commissioner has improperly denied a motion to disqualify. State ex rel Bank of America v. Rowe, 96 Fla. 277, 118 So. 5 (1928); and R.P. Hewitt & Associates v. Hurt, 411 So.2d 266 (Fla. 1st DCA 1982).

However, in the instant case, we agree with the deputy's ruling that the facts alleged by the employer/carrier were legally insufficient to justify the granting of the motion. ¹ We would note that, in so ruling, the deputy did not improperly rule on the truth or falsity of the facts...