Pollock v. Govan Const. Co.

• Decision Date: 04 November 1976
• Docket Number: No. 75-1508,75-1508
• Citation: 541 F.2d 1119
• Parties: Lori Ann POLLOCK, Plaintiff-Appellee Cross Appellant, Lori Ann Pollock and Billy J. Pollock, minor children of Lewis Gene Pollock, Deceased, by their next friend, Karl Pollock, and Elsie M. Long, as Administratrix of the Estate of Lewis Gene Pollock, Plaintiffs-Appellees, v. GOVAN CONSTRUCTION COMPANY, a Michigan Corporation, and Insurance Company of North America, its liability insurance carrier, Defendants-Appellants Cross Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1119

541 F.2d 1119

Lori Ann POLLOCK, Plaintiff-Appellee Cross Appellant Lori Ann Pollock and Billy J. Pollock, minor children of Lewis Gene Pollock, Deceased, by their next friend, Karl Pollock, and Elsie M. Long, as Administratrix of the Estate of Lewis Gene Pollock, Plaintiffs-Appellees, v. GOVAN CONSTRUCTION COMPANY, a Michigan Corporation, and Insurance Company of North America, its liability insurance carrier, Defendants-Appellants Cross Appellees.

No. 75-1508.

United States Court of Appeals Fifth Circuit.

Nov. 4, 1976.

T. Paine Kelly, Jr., Tampa, Fla., for defendants-appellants cross appellees.

John A. Lloyd, Jr., St. Petersburg, Fla., for plaintiff-appellee cross appellant.

Appeals from the United States District Court for the Middle District of Florida.

Before BROWN, Chief Judge and TUTTLE and GEE, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Lewis Gene Pollock died as the result of an on-the-job accident which occurred on November 13, 1971. Plaintiffs/Appellees are his children who were 7 and 15 years old at the time of the accident, their uncle, decedent's brother, who sues as their next friend and their aunt who was the administratrix of the estate. Defendants/Appellants, Govan Construction Company (Govan) are a company for whom, directly or indirectly, the decedent was working when killed, and its Insurer. ¹

Lewis Pollock died after some concrete stairs collapsed and fell on him while he was doing construction work on an apartment complex owned by Govan. He had been hired by Malcolm Small who in turn had been hired by Govan. The fact of Small's negligence is not appealed. His status vis a vis Govan is at issue before us. If Small were an independent contractor and he hired Pollock then Pollock was not an employee of Govan and his beneficiaries could sue Govan as a third party for wrongful death. If, however, Small were found to be an employee of Govan then Pollock was also, and his heirs would be left with only the remedy of Workmen's Compensation benefits, for a maximum recovery of $15,000. The jury found that Small was an independent contractor. We affirm on that issue, but certify to the Supreme Court of Florida some troublesome local questions which will affect the result.

Independent Contractor

The status of Small as an independent contractor/employee was a question of fact for the jury. There are facts in the record which tend to establish Small as an employee ² while others make him appear as an independent contractor. ³ Applying applicable Florida substantive standards we hold that there is competent substantial evidence to support the jury's finding that Small was an independent contractor and consequently that Pollock's representatives were not restricted to a workman's compensation claim against Govan as an employer, but were entitled under Florida law to pursue Govan as a third party. Guided as we are by the Seventh Amendment under our applicable standards we find the evidence sufficient to withstand the motion for directed verdict. Consequently we do not reverse that finding. ⁴

This case is not so simple that a mere affirmance on the independent contractor issue will resolve it. Since we have held that Small was an independent contractor, two significant, if not decisive, issues now are raised.

Estoppel

Soon after Pollack's death the Bureau of Workmen's Compensation as a result of the employer's (Govan's) compulsory report of injury/death administratively determined that he was an employee of Govan when he died and that the accident was compensable under the Florida Workmen's Compensation law § 440.16 Fla.Stat. ⁵ Thereafter Insurer for Govan began payments to Pollack's children pursuant to the applicable schedule. ⁶ Neither the children nor their uncle nor anyone on their behalf ever made any claim for these benefits. They simply were begun due to the self-executing nature of the Florida Act. The Bureau's order entered on January 21, 1972 both compelled the payments of benefits and designated the uncle as the proper person to receive the payments on behalf of the children. When the children later went to live with their aunt she was substituted for the uncle as the recipient of the payments.

We are now asked to decide whether the administrative determination by the Bureau of Workmen's Compensation that Pollock was an employee of Govan at the time of his death and that the accident was compensable by Govan (or Insurer) under Florida Workmen's Compensation law and the payment of benefits thereafter by Insurer and the acceptance thereof by the children constitute estoppel to bar the children from claiming that the relationship between Govan and Pollock ⁷ was not that of employer/employee but was, rather, an independent relationship not affected by Workmen's Compensation.

Termination of Benefits

When their father died in 1971 as a result of the occurrence, Lori Ann Pollock was aged 7 and Billy Pollock was aged 15. When they brought suit in the District Court for his wrongful death under § 768.01 ⁸-.02 ⁹ Fla.Stats. the jury awarded $57,400 to Lori Ann and $69,050 to Billy, reduced by the amounts they had already received in weekly compensation payments. The lower court instructed the jury that the children could not recover for any economic loss for the period following their eighteenth birthday. It based its ruling upon the 1973 amendments to the Florida Statutes which lowered the age of majority from 21 to 18 years of age. ¹⁰

Under the Florida Wrongful Death Statute as it existed when Pollock died the action was restricted to the surviving spouse and if there was none then the minor child or children could sue. Under the old statute if a child had passed the age of 21 at the time of his parent's death there was no right to recovery. ¹¹

Even though the old statute did not specifically state that awards to children would terminate upon the child's reaching the age of majority ¹² the courts clearly interpreted it as if it did. See Triay v. Seals, 1926, 92 Fla. 310, 109 So. 427, 430; Pidcock-Jones v. Watson et al., 1940, 141 Fla. 376, 193 So. 305, 306; Powell v. Gessner, 1970, Fla.App., 231 So.2d 50, 52.

Since Pollock's death in 1971, the Florida Wrongful Death Statute was amended to specifically define minor children as unmarried children under age 21. ¹³ Thus it seems that under either the old or new Wrongful Death Statutes recovery could be based on a maximum of 21 years. The question that now arises is what effect, if any, do the 1973 amendments to the Florida Code, § 1.01 Fla.Stat. ¹⁴ and § 743.07 Fla.Stat. ¹⁵, which lowered the age of majority from 21 to 18 have upon an action for wrongful death which accrued prior to their passage?

Related to this is the question raised by the cross appeal of Lori Ann Pollock. She contends that it was error for the Court to instruct the jury that no damages could be awarded her for loss of parental support and guidance beyond age 18 and to fail to allow them to consider the fact that their father's death made them orphans.

The briefs of counsel indicate that no definitive answer to either of these questions has yet been given by the Florida courts. Since these issues present problems of great magnitude in terms of local Florida policy and are likely to be reoccurring ones we therefore feel that we should seek an authoritative answer from the Supreme Court of Florida. These questions will be certified but this opinion does not constitute the certification. As is our practice ¹⁶ a directive will be issued in conjunction with this opinion requiring counsel to formulate the certificate. When response from counsel is received the Court will prepare and issue the formal certified questions.

AFFIRMED IN PART and CERTIFIED.

1 Insurance Company of North America.

2 Small testified that the superintendent for Govan was in charge of everything he ever had anything to do with; that he believed he was required to do as he was told if he wanted to keep his job, he was not licensed to build stairs, he was a carpenter. Govan furnished the materials and equipment except for hammers, pinch bars and a few nuts, etc. Small was being paid by the hour and not by the job at the time of the accident.

3 Neither Small nor his employees were on the payroll of Govan. Small submitted a bill upon completion of each job. Small billed Govan for himself and his employees, then paid the employees directly. It was Small who paid the social security benefits for Pollock and remitted the income taxes. Small hired and fired his own employees. On the original reports of the accidents to the Florida Workmen's Compensation Bureau, Small was named as the employer of Pollock. The pre-trial stipulation states that Pollock was an employee of Small.

4 See Boeing Company v. Shipman, 5 Cir., 1969, 389 F.2d 507, on rehearing, 5 Cir., 411 F.2d 365.

5 440.16 Compensation for death

If death results from the accident within one year thereafter or follows continuous disability and results from the accident within five years thereafter, the employer shall pay:

(1) Actual funeral expenses not to exceed five hundred dollars.

(2) Compensation, in addition to the above, in the following percentages of the average weekly wages to the following persons entitled thereto on account of dependency upon the deceased and in the following order of preference (subject to the limitation provided in paragraph (c) of § 440.16(2) below), but such compensation shall be subject to the limits provided in subsection (2) of § 440.12 and shall not exceed a period of three hundred fifty weeks; and may be less than, but shall not exceed, for all dependents or persons entitled to compensation, sixty per cent of the average wages.

6 Payments of $112 were to be made every two weeks up to a maximum of 350 weeks or $15,000 whichever came first.

7 Govan cites the following cases for this issue, Carter v. Superior Court, 1956, 142 Cal.App.2d 350, 298 P.2d 598; Shoopman v. Calvo, 1964, 63 Wash.2d 627, 388 P.2d 559...