A.S.J. Drugs, Inc. v. Berkowitz, 83-2767

• Decision Date: 24 October 1984
• Docket Number: No. 83-2767,83-2767
• Citation: 459 So.2d 348
• Parties: A.S.J. DRUGS, INC., d/b/a Deerfield Beach Drugs and Casualty Reciprocal Exchange, Appellants, v. Shirley B. BERKOWITZ, Colonial Penn Insurance Company, Jennie Greer and Robert A. Rosenblatt, Esquire, Appellees.
• Court: Florida District Court of Appeals

Page 348

459 So.2d 348

A.S.J. DRUGS, INC., d/b/a Deerfield Beach Drugs and Casualty Reciprocal Exchange, Appellants, v. Shirley B. BERKOWITZ, Colonial Penn Insurance Company, Jennie Greer and Robert A. Rosenblatt, Esquire, Appellees.

No. 83-2767.

District Court of Appeal of Florida Fourth District.

Oct. 24, 1984.

Rehearing Denied Dec. 20, 1984.

Anthony J. Beisler, III, of Anthony J. Beisler, P.A., Fort Lauderdale, for appellants.

Paula C. Kessler and John M. Kelley of Pyszka & Kessler, P.A., Fort Lauderdale, for appellees--Berkowitz and Colonial Penn Ins. Co.

Robert A. Rosenblatt of Gilmour, Morgan & Rosenblatt, Miami, for appellees--Greer and Rosenblatt.

GLICKSTEIN, Judge.

This is an appeal from an order dismissing with prejudice a second amended complaint. We affirm in part and reverse and remand in part.

The facts show that Jennie Greer, while delivering medicine and getting sandwiches on her lunch hour, was involved in an accident with Shirley Berkowitz. Greer sued Berkowitz and her insurance company, settling out of court for $45,000. At this time, there had been no claim under worker's compensation, and the worker's compensation insurer was unaware of the accident. One month after the settlement, however, Greer did file for worker's compensation. The deputy commissioner found that while the settlement prejudiced Greer's worker's compensation carrier, it did not constitute a waiver of her right to benefits. Greer therefore received another $10,716.12.

Greer's employer and its worker's compensation insurer filed a tort action against Greer, Berkowitz, Berkowitz's insurer, and the attorney who handled Greer's lawsuit against Berkowitz. Their first two complaints were dismissed without prejudice, and they filed a second amended complaint. The complaint alleges two counts of intentional misrepresentation against Greer and her attorney, saying that each misled the employer with regard to liability under worker's compensation and intent to claim under it. Additionally, the complaint alleged that Berkowitz and her insurance company knew or should have known that her accident was compensable through worker's compensation, but ignored the possibility, thus destroying appellants' right to a share of the settlement proceeds. This complaint was dismissed with prejudice, whereupon follows this appeal.

The issue is whether the trial court erred in dismissing the second amended complaint with prejudice. We conclude:

A. As to counts I and II, it did; therefore we reverse and remand.

B. As to counts III and IV, it did not; therefore, we affirm.

COUNTS I AND II

Under count I, appellants made the allegations that Jennie Greer defrauded them of their rights to equitable distribution of the settlement recovery by telling her employer that the accident was not covered by worker's compensation and that she would make no claim; that relying on this representation, her employer filed no injury notice with the state or his carrier; and that Greer intended that the statements deceive her employer and his carrier, who reasonably relied upon them to their material detriment.

While both parties have couched their briefs in terms of the various interpretations of the applicable worker's compensation section, and the remedies available under it, the above count clearly states a cause of action sounding in fraud. If the facts as stated above are true, which they are considered to be for purposes of a motion to dismiss, then appellants have alleged a false statement regarding a material fact, knowledge of its falsity, the intention that the lie be acted upon, and injury to the other party caused by his reasonable reliance upon the representation. These are the elements of common-law fraud, e.g., Amazon v. Davidson, 390 So.2d 383, 385 (Fla. 5th DCA 1980), and state a cause of action. The representation that Greer would not be filing a claim for worker's compensation would be considered fraudulent Count II, alleging fraud against the attorney who represented Greer in her suit against Berkowitz, bases the allegations on two statements, one written and one oral. The written statement was in a letter written to the employer, and included as exhibit B by reference in the complaint. The letter, however, is only a request that Greer's employer fill in the blanks of a form with appropriate answers, and is not a representation as to the correctness of those answers. Under Health Application Systems, Inc. v. Hartford Life and Accident Insurance Company, 381 So.2d 294 (Fla. 1st DCA 1980) and Florida Rule of Civil Procedure 1.130(b), if the exhibit attached and incorporated by a pleading contradicts the cause of action, then the document will control and may serve as a basis for a motion to dismiss. In this case, the writing does not support the cause of action, so the motion to dismiss was proper as to it.

if she had every intention of filing when she made it. Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So.2d 1367, 1371-72 (Fla. 4th DCA 1981). There is, of course, no evidence that Greer knew that she could file a claim and/or that she intended to do so all along, however, evidence is not required at this stage, merely an allegation. If Greer did make the assertion that she would not be filing under worker's compensation, this is a positive and...