Mullarkey v. Florida Feed Mills, Inc.

• Decision Date: 25 October 1972
• Docket Number: No. 41219,41219
• Parties: Joseph A. MULLARKEY, individually and as Administrator of the Estate of John B. Mullarkey, a minor, deceased, Appellant, v. FLORIDA FEED MILLS, INC., a Florida corporation, and Aetna Insurance Company, an insurance corporation, Appellees.
• Court: Florida Supreme Court

Page 363

268 So.2d 363

Joseph A. MULLARKEY, individually and as Administrator of the Estate of John B. Mullarkey, a minor, deceased, Appellant, v. FLORIDA FEED MILLS, INC., a Florida corporation, and Aetna Insurance Company, an insurance corporation, Appellees.

No. 41219.

Supreme Court of Florida.

Oct. 25, 1972.

Joseph M. Glickstein, Jr., Jacksonville, for appellant.

T. Malcolm Kirby, of Howell, Kirby, Montgomery, D'Aiuto, Dean & Hallowes, Jacksonville, for appellees.

CARLTON, Justice:

In this appeal, a parent, individually and as administrator of his deceased minor son's estate, challenges the constitutionality of Florida Statutes, Chapter 440, F.S.A., insofar as it relates to compensation for death of an employee leaving no surviving Dependents. We affirm the decision of the Circuit Court, Duval County, that the Chapter, as applicable, is constitutional. ¹

Appellant's son died on July 20, 1970, in an industrial accident while working for a business covered under the Workmen's Compensation Act. The deceased was unmarried and had no children; his parents survived him, but they were not financially dependent upon him. Appellant parent, individually and as administrator, brought suit in Circuit Court seeking whatever relief possible under Fla.Stat. § 46.021, F.S.A., the Survival Statute, and Fla.Stat. §§ 768.01, .02 and .03, F.S.A., the Wrongful Death Acts. The death was alleged to have been the result of the employer's negligence. The employer denied any negligence on its part; more importantly, it denied the existence of any cause of action in behalf of the deceased outside of the confines of the Workmen's Compensation Act.

This case is somewhat unusual in that appellant admits that under the wording of the applicable sections of Chapter 440, and prior decisions of this Court, the employer was entitled to summary judgment. The applicable statutory sections are: § 440.02(2)(a), defining a minor child as an 'employee'; §§ 440.03 (1969), 440.05 (1969) and 440.07 (1969), giving the employee opportunity to accept or reject the Act as part of the work contract; § 440.11, making the Act the exclusive source of liability of the employer if the employee has accepted the Act; § 440.16, making compensation for death relate directly to dependency, except for funeral expenses in the amount of $500.00; § 440.16(2) (e), allowing recovery to parents only if dependent. The prior decisions of this Court, which are similar in fact and in law to this case, are Amsler v. Sox Meat Packers, 75 So.2d 207 (Fla.1954), Howze v. Lykes Bros., 64 So.2d 277 (Fla.1953), and Chamberlain v. Florida Power Corp., 144 Fla. 719, 198 So. 486 (1940).

Appellant's case in Circuit Court, as well as here, was based on the contention that the above statutory sections were unconstitutional; under this theory, it is argued, our previous decisions in similar situations would amount for naught because they assumed the constitutionality of the Act as applied. The trial court noted in its Summary Final Judgment: 'The parties agree that if the court subscribes to the reasoning of the defendants (employer and carrier) that the Workmen's Compensation law limits the recovery in this action to $500.00 (funeral expenses under Fla.Stat. § 440.16(1), F.S.A.) the court should enter a summary final judgment for the defendants, but if the court subscribes to plaintiff's theory of unconstitutional discrimination the defendants' motion for summary judgment should be denied.'

Appellant's constitutional argument is this. Normally, when a minor child dies, allegedly as the result of the negligence of another, the parents, individually and as administrators, may seek redress under the Survival Statute and the Wrongful Death Acts if the circumstances permit. When that child is an employee, redress is still available under Fla.Stat. § 440.16, F.S.A., if the child leaves dependents surviving, even though the Survival and the Death Acts are not applicable. However, should the child die, as here, without leaving Dependents surviving, then no recovery is possible other than for funeral expenses. Thus the Legislature has instituted a system wherein survivors of a non-employed child may seek relief under the Survival Statute and the Wrongful Death Acts; and wherein survivors of a child who were dependent upon him may seek relief under the Workmen's Compensation Act; but also wherein non-dependent survivors of an employed child are precluded from relief, not only under Survival and Wrongful Death statutes, but also under the Workmen's Compensation Act. This last category of survivors is effectively denied any recovery, and such discrimination is unconstitutional because it is not based on any rational distinction or reason.

Candor compels an admission that we are sympathetic with appellant's position, but we do not doubt the constitutionality of the statutes in question. Several factors contribute to this conclusion.

First, the assertion that Chapter 440 discriminates because it limits death benefits to those who are financially dependent on the deceased is not new. In Chamberlain v. Florida Power Corp., Supra, an administrator for a deceased employee filed a wrongful death action in Circuit Court. The deceased left no dependents surviving, and the administrator's argument was that the remedy for death set out in Chapter 440 could not be 'exclusive' because provision was made only for compensation of dependents. Where there were no dependents, it was argued, the Wrongful Death Acts then became available notwithstanding the status of the deceased as an employee.

The Circuit Court dismissed the action and this Court granted review. We held that because the provisions of Chapter 440 were optional, the employee was free to accept or reject coverage under Act. When coverage was elected, then the Chapter's provisions, including compensation for death and exclusiveness of liability, applied and bound the employee, and through him his representatives and survivors. We also held that the Legislature fully intended that the Act apply even when no dependents survived, because it amended an earlier version of the Act which left the issue in doubt; see Maryland Casualty Co. v. Sutherland, 125 Fla. 282, 169 So. 679 (1936), which was decided before the amendment.

The subject matter of litigation in Howze v. Lykes Bros., Supra, was the right of a parent to bring a wrongful death action for the death of his minor child, an employee who died in a work-related accident. The parent's suit was dismissed in Circuit Court and an appeal was taken here. We approved the dismissal:

'The point for determination is whether or not Section 768.03, F.S.A. bars the father of a minor from recovery under the facts stated.

'The trial court, on authority of Chamberlain v. Florida Power Corporation, 144 Fla. 719, 198 So. 486, answered this question in the affirmative and we think correctly. Appellant contends that it was not the purpose of the Workmen's Compensation Act to exclude the father from recovering damages for mental pain and suffering in a case like this, but we think Section 440.11, F.S.A. (the exclusiveness of liability section) is a complete answer to this contention. The philosophy of workman's compensation is that when employer and employee accept the terms of the act their relations become contractual and other statutes authorizing recovery for negligent death become ineffective. (citations omitted)'

In the instant case, the deceased had the option to accept or reject coverage at the time of employment, under authority of Fla.Stat. §§ 440.03 (1969), 440.05(2) (1969) and 440.07 (1969), F.S.A. By his voluntary act, he chose to bind himself, and his representative and survivors in event of death, to the provisions of the Act. No unconstitutional discrimination exists under these circumstances.

Second, we think it fully within the power of the Legislature to provide for a Workmen's Compensation system which supersedes other legislation affecting compensation or relief after death or injury. Distribution of the inevitable costs of industrialism on a rational basis is within the interests of the citizens of this State. General welfare costs are reduced to the extent that compensation keeps the injured and his dependents from the public dole. Protracted litigation is superseded by an expeditious system of recovery. Protectu Awning Shutter Co. v. Cline, 154 Fla. 30, 16 So.2d 342 (1944); Duff Hotel Co. v. Ficara, 150 Fla. 442, 7 So.2d 790 (1942).

Third, the concept of exclusiveness of remedy embodied in Fla. Stat. § 440.11, F.S.A. appears to be a rational mechanism for making the compensation system work in accord with the purposes of the Act. In return for accepting vicarious liability for all work-related injuries regardless of fault, and surrendering his traditional defenses and superior resources for litigation, the employer is allowed to treat compensation as a routine cost of doing business which can be budgeted for without fear of any substantial adverse tort judgments. Similarly, the employee trades his tort remedies for a system of compensation without contest, thus sparing him the cost, delay and uncertainty of a claim in litigation.

Fourth, the requirement of dependency for compensation in the event of death under Fla.Stat. § 440.16, F.S.A. also appears to be rational in light of the purposes of the Act. Unlike tort remedies, relief under Workmen's Compensation (other than medical benefits) is directly related to loss of earning power either to the employee, or to those financially supported by him; pain and suffering, loss of consortium and the like are not compensable, because the purpose of the Act is not to provide tort relief, but to supplant the uncertainty of those remedies with a scheduled payment of lost wages. Under this concept, those not financially supported by the deceased employee suffer no loss with his demise. Note Amsler v. Sox Meat Packers, 75 So.2d 207 (Fla.19...