Santizo-Perez v. Genaro's Corp.
| Decision Date | 19 May 2014 |
| Docket Number | No. 1D13–2674.,1D13–2674. |
| Citation | 138 So.3d 1148 |
| Parties | Dilma Celeny SANTIZO–PEREZ (Widow as well as Mother and Personal Representative of the Minor Children of the Marriage Ana Victoria Piviral–Santizo and Andrew Alexis Pivaral–Santizo, Surviving Dependents of Melvin Pivaral–Ramirez), Appellant, v. GENARO'S CORPORATION d/b/a King's Food and Meat Bazaar, Appellees. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
R. Lee Dorough of Dorough, Calzada & Soto, L.L.P., Orlando, for Appellees.
BERGOSH, GARY L., Associate Judge.
In this workers' compensation case, the surviving dependents of Melvin Pivaral–Ramirez, an employee of King's Food and Meat Bazaar (King's), challenge an order of the Judge of Compensation Claims (JCC) that denies the compensability of his accident, injuries, and death. We conclude the JCC erred in denying compensability; we therefore reverse the appealed order and remand the case for the award of benefits available under the Florida Workers' Compensation Law.
Facts
Mr. Pivaral–Ramirez was the front-end manager for King's. On the evening of June 5, 2011, he began to gather shopping carts from King's parking lot. As he worked in the parking lot, a car hit him and sped away. Suffering from, inter alia, severe brain injuries leaving him in a vegetative state, he passed away in the hospital a few weeks later.
The driver of the car, Christopher Polanco, was apprehended that same night, and claimed his actions were in reaction to the decedent sexually harassing his girlfriend, a cashier at King's.1 The criminal assailant confessed that he planned the attack for at least two to three weeks and knew Mr. Pivaral–Ramirez collected shopping carts from the store's parking lot each night. On the night of the murder, the assailant confessed, he borrowed the car from a friend, brought food to his girlfriend at the store, and then waited in the parking lot as it began to get dark. When Mr. Pivaral–Ramirez emerged from the store to collect the day's shopping carts, the assailant confessed, he became enraged, turned on the car's high beam headlights, and sped towards Mr. Pivaral–Ramirez, striking and ultimately killing him.
Analysis
The Workers' Compensation Law defines “injury” as “personal injury or death arising out of and in the course of employment.” § 440.02(19), Fla. Stat. (2010). The Law also requires that an injury, to be compensable, “aris[e] out of work performed in the course and scope of employment.” § 440.09(1), Fla. Stat. (2010). Here, the JCC concluded that, although the decedent was in the course and scope of his employment at the time of his injury, the injury did not arise out of his employment because there was no evidence that “anything in the decedent's employment was related to him being put at risk of being murdered,” “[t]he vehicle used in the assault was not an implement of the employment,” “[t]here is no evidence of a close proximity between the decedent and his assailant,” and the location of the attack was merely “convenient” or “fortuitous” because, given the assailant's belief that his girlfriend was being sexually harassed by the decedent, “chances were the assault was inevitable, without regard to the employment.” The JCC further concluded the “assailant could just as easily [have] hit [the decedent] with the vehicle or attacked him in some other way elsewhere.” While some of these findings are proper as allowed by case law describing the factors a JCC may consider in determining the work-relatedness of an intentional act, the last conclusion is quite speculative.2See Sentry Ins. Co. v. Hamlin, 69 So.3d 1065, 1071 (Fla. 1st DCA 2011) (work-related risk); Carnegie v. Pan Am. Linen, 476 So.2d 311, 312 (Fla. 1st DCA 1985) (); Tampa Maid Seafood Prods. v. Porter, 415 So.2d 883, 885 (Fla. 1st DCA 1982) (close proximity); San Marco Co. v. Langford, 391 So.2d 326, 327 (Fla. 1st DCA 1980) (fortuitous location). Of course, not all factors need to be present in all cases of compensability.
We accept, as supported by the record, the facts as found by the JCC. Therefore, the JCC's interpretation and application of the statute is a question of law subject to review de novo. As the parties agree that the decedent was “in the scope of his employment,” the seemingly simple issue is whether the decedent's injurycan be found to be “arising out of” his employment. The inquiry is not as to fault. Rather, it is merely “of marking out boundaries.” Hamlin, 69 So.3d at 1069 (quoting Taylor v. Sch. Bd. of Brevard Cnty., 888 So.2d 1, 5 (Fla.2004) (quoting 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation, Desk Edition § 1.03, at 1–4 to 1–5 (2003))). In general terms, when a work-related risk brings about injury, the injury is compensable vis-à-vis those that are brought about by risks personal in nature, which are not. See Hamlin, 69 So.3d at 1070.
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...benefits secured after ten years....Because we engage in statutory construction, our review is de novo. See Santizo–Perez v. Genaro's Corp., 138 So.3d 1148, 1149 (Fla. 1st DCA 2014) (explaining that “the JCC's interpretation and application of the statute is a question of law subject to rev......