Rassi v. Dispatch Service Group, BO-120
| Decision Date | 22 October 1987 |
| Docket Number | No. BO-120,BO-120 |
| Parties | 12 Fla. L. Weekly 2460 Amador RASSI, Appellant, v. DISPATCH SERVICE GROUP and Greyhound Corporation, Appellees. |
| Court | Florida District Court of Appeals |
Robert K. Estes, Coral Gables, for appellant.
Mark L. Zientz, Coral Gables, for appellees.
Finding the deputy erred in dismissing the claim for workers' compensation benefits as untimely filed, we reverse.
The claimant took a voluntary dismissal of his claim during a March 8, 1984 hearing with the understanding that the two-year statute of limitations would not run on his claim until March 24, 1986. Six days later, the claim was refiled. On May 11, 1984, the deputy entered an order dismissing the claim without prejudice, based on the ore tenus motion made on March 8, 1984. After several months of inactivity, the claimant wrote the Division of Workers' Compensation in November, 1984 seeking to have the claim set for hearing. Included in his hearing request was a copy of the previously filed claim.
On January 11, 1985, the parties entered a pretrial stipulation which indicated that the claim was filed on December 6, 1984. The E/C raised the statute of limitations as a defense. During the merits hearing, the E/C took the position that the May 11, 1984 order on the voluntary dismissal had the effect of dismissing the refiled claim of March 14, 1984 and that the claim was not filed until the request for hearing was submitted in December, 1984. The deputy commissioner apparently agreed with this view in dismissing the claim as barred by the statute of limitations.
Workers' Compensation Rule of Procedure 4.110(a) allows voluntary dismissals without prejudice, except that a second voluntary dismissal operates as an adjudication of any claim for the same benefit or benefits previously the subject of a voluntary dismissal. The 1984 committee note states that this rule conforms workers' compensation procedure with Florida Rule of Civil Procedure 1.420(a)(1) which deals with voluntary dismissals. Under that rule an action may be dismissed by a plaintiff without order of court during trial by stating on the record a notice of dismissal anytime before the case is submitted to the trier of fact. Hinton v. Iowa National Mutual Insurance Co., 317 So.2d 832 (Fla. 2d DCA 1975), cert. denied, 328 So.2d 842 (Fla.1976). This right is absolute and the trial court has no discretion in granting or denying such a dismissal by a plaintiff. State Department of Natural Resources v. Hudson Pulp & Paper Corp., 363 So.2d 822 (Fla. 1st DCA 1978). Once a plaintiff takes a voluntary dismissal, the suit terminates and...
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...that we have construed the right to dismissal as absolute, leaving no room for the trial court's discretion. Rassi v. Dispatch Service, 513 So.2d 1369, 1370 (Fla. 1st DCA 1987). The operation of the rule, at least in the situations presented by Rassi, Granese, and the present case, is now c......
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