Tenneco, Inc. v. Montana

• Citation: 520 So.2d 615,13 Fla. L. Weekly 132
• Decision Date: 05 January 1988
• Docket Number: No. BQ-498,BQ-498
• Parties: 13 Fla. L. Weekly 132 TENNECO, INC. and Traveler's Insurance Company, Appellants, v. Michael MONTANA, Appellee.
• Court: Court of Appeal of Florida (US)

Page 615

520 So.2d 615

13 Fla. L. Weekly 132

TENNECO, INC. and Traveler's Insurance Company, Appellants, v. Michael MONTANA, Appellee.

No. BQ-498.

District Court of Appeal of Florida First District.

Jan. 5, 1988.

Robert G. Brightman, Orlando, for appellants.

David M. Hammond, Orlando, for appellee.

NIMMONS, Judge.

In this appeal by the employer/carrier we find only one issue which merits discussion. The deputy based the claimant's average weekly wage (AWW) in part on the claimant's concurrent earnings derived from his position as an officer and part owner of a corporation. It was the policy of this corporation to keep workers' compensation insurance in place for all of its employees, but the claimant discovered subsequent to his injury that another officer had permitted the insurance to lapse by failing to pay the premiums. The employer/carrier contend that the insurance lapse renders the claimant's otherwise includible concurrent income from this venture non-includible. We disagree and affirm.

The authorities relied upon by appellants deal with the principle that concurrent wages earned in types of employment which are excluded from coverage under the Workers' Compensation Act cannot be included in the AWW calculation. E.g. State of Florida, Department of Corrections v. Tharpe, 413 So.2d 159 (Fla. 1st DCA 1982) (employer with less than three employees); Randell, Inc. v. Chism, 404 So.2d 175 (Fla. 1st DCA 1981) (independent contractor); Rollins Building Services, Inc. v. Thomas, 393 So.2d 665 (Fla. 1st DCA 1981) (domestic servant). But whether an employer acquires workers' compensation insurance--or once acquired, whether the employer keeps such insurance in force--is unrelated to whether the Act covers that employment. We hold that whether a claimant was covered by a workers' compensation insurance policy in his concurrent employment is irrelevant to whether his concurrent earnings are includible in the AWW calculation.

We note that the Florida Supreme Court in American Uniform & Rental Service v. Trainer, 262 So.2d 193 (Fla.1972) discarded the principle announced in J.J. Murphy & Son, Inc. v. Gibbs, 137 So.2d 553 (Fla.1962), that concurrent earnings from dissimilar employment otherwise covered by the Act are not includible in the AWW calculation. The Court noted the inequitable results frequently occurring under the old rule and concluded that nothing in the body of the Act compelled such a principle. The Court went on to point out that...