Thundereal Corp. v. Sterling, FF-214

• Decision Date: 09 March 1979
• Docket Number: No. FF-214,FF-214
• Citation: 368 So.2d 923
• Parties: THUNDEREAL CORPORATION, a corporation, and Master Hosts-Thunderbird, Inc., a Florida corporation, as partners of Thunderbird Associates, a Florida partnership, d/b/a Thunderbird Motor Hotel, and Aetna Casualty and Surety Company, a corporation, Appellants (Defendants), v. Ann Sothern STERLING, Appellee (Plaintiff).
• Court: Florida District Court of Appeals

Page 923

368 So.2d 923

THUNDEREAL CORPORATION, a corporation, and Master Hosts-Thunderbird, Inc., a Florida corporation, as partners of Thunderbird Associates, a Florida partnership, d/b/a Thunderbird Motor Hotel, and Aetna Casualty and Surety Company, a corporation, Appellants (Defendants), v. Ann Sothern STERLING, Appellee (Plaintiff).

No. FF-214.

District Court of Appeal of Florida, First District.

March 9, 1979.

Rehearing Denied April 11, 1979.

William M. Howell of Howell, Howell, Liles & Braddock, Jacksonville, for appellants.

Thomas M. Baumer and Dana G. Bradford, II, of Mahoney, Hadlow & Adams, Jacksonville, for appellee.

MILLS, Acting Chief Judge.

Appellants seek reversal of a final judgment entered in favor of appellee following a jury trial in a personal injury action.

Their main contention is that the trial court erred in denying their motion for a directed verdict on the ground that the exclusive remedy for Sothern's injuries was provided by the Florida Workmen's Compensation Act. They also contend that the trial court erred in ruling that each side had six peremptory jury challenges, erred in making a number of adverse rulings on the admissibility of testimony and evidence and erred in permitting prejudicial closing argument by Sothern's attorney.

Sothern alleges that while performing at the Thunderbird Dinner Theater as an independent contractor she was injured by Thunderbird's negligence and that Aetna provided Thunderbird with liability insurance coverage for the accident.

Thunderbird and Aetna deny Sothern's allegations and affirmatively allege that the exclusive remedy for Sothern's injuries was provided by the Florida Workmen's Compensation Act because compensation insurance had been provided for her under Section 440.04(2), Florida Statutes.

Sothern, an actress, was performing in a play at the Dinner Theater under a contract between Thunderbird and Sothern that provided that Sothern was to perform for four weeks commencing 11 August 1973.

Sothern acknowledges in the contract that she executed it as an independent contractor. The contract provides that the rules and regulations of Actors' Equity Association shall be applicable to the contract. Rule 32(A) of the Association states that "The manager agrees to obtain and maintain workmen's compensation insurance coverage for all actors in his employ." The contract was signed by the manager of Thunderbird and Sothern.

On 21 May 1973, when Thunderbird assumed the ownership of the Motel and the Dinner Theater went into operation, it procured a workmen's compensation insurance policy from Aetna, effective for one year. The policy covered the operation of "motels, motor courts, tourist courts or cabins."

Thunderbird's manager testified that he dealt with Aetna's agent in procuring the policy, had discussions with him concerning coverage and premiums, was familiar with how the premium was calculated and gave Aetna the projected budget for each department, including the actors and actresses. Anyone who was employed by Thunderbird was included in the policy, and they had discussions concerning the fact that the Dinner Theater employed outside actors and actresses. Outside actors and actresses were specifically considered and included in arriving at the premium. However, the manager also stated that he did not know the amount of the premium paid for the policy, how the premium was calculated and had no personal knowledge or business records to prove any of the facts concerning Thunderbird's application for coverage of Sothern.

Thunderbird and Aetna admit that Sothern is an independent contractor, thus, the issue before us is limited to whether her exclusive remedy is provided by Chapter 440, Florida Statutes.

An independent contractor is exempt from the provisions of Chapter 440. Section 440.02(2)(d)1, Florida Statutes (1973). Section 440.04(2), Florida Statutes (1973), permits an employer to waive the exemption, however, and provide workmen's compensation insurance for an independent contractor. In pertinent part, this Section provides:

"When any policy or contract of insurance specifically secures the benefits of this chapter to any person not included in the definition of 'employee' or whose services are not included in the definition of 'employment' or who is otherwise excluded or exempted from the operation of this chapter, the acceptance of such policy or contract of insurance by the insured and the writing of same by the carrier shall constitute a waiver of such exclusion or exemption and an acceptance of the provisions of this chapter with respect to such person . . . ."

Although Thunderbird's manager indicated it was his intention that Sothern be covered by Aetna's policy, the declarations section of the policy classifies the operations of Thunderbird as motels, motor courts, tourist courts or cabins. No reference is made to coverage of a dinner theater or its operations, to actors or actresses or to other dinner theater employees.

The policy was issued on an Aetna standard form on 21 May 1973. Sothern was not engaged to perform at the Dinner Theater until 18 July 1973, the date the contract was executed. Neither the record nor the policy reflects an endorsement providing coverage for independent contractors, actors, actresses or Sothern.

Thunderbird's and Aetna's reliance on Allen v. Estate of Carman, 281 So.2d 317 (Fla.1973), and Strickland v. Al Landers Dump Trucks, Inc., 170 So.2d 445 (Fla.1965), is misplaced.

The Allen case did not involve an independent contractor. There was no dispute that the plaintiff was an employee of the defendant's decedent. The Supreme Court held in Allen that an employer could purchase a workmen's compensation insurance policy and avail himself of the Workmen's Compensation Act. There was no issue of whether the benefits had been specifically secured for the employee, because there was no dispute that a policy had been purchased, and that the policy had been purchased for the one individual working for him.

In the Strickland case, Strickland was an independent contractor, and he had notice of his coverage under the Workmen's Compensation Act, because he had actually paid the premiums for the insurance coverage by deductions from his earnings. The Supreme Court held that the insurance company could not deny that benefits had been specifically secured for Strickland after writing a policy and accepting his premiums.

The facts presented by this record show an ambiguous policy and conflicting testimony regarding workmen's compensation coverage for Sothern. Other facts which required the submission of this issue to the jury are discussed later in this opinion.

The direction of a verdict should be cautiously given and all inferences of fact should be construed most strictly in favor of the nonmovant. Lustig v. Feinberg, 285 So.2d 631 (Fla. 1st DCA 1973). The trial court properly denied Thunderbird's and Aetna's motion for a directed verdict and submitted the disputed fact of coverage to the jury.

At the request of Sothern and over the objection of Thunderbird and Aetna, the court ruled that each side would have six peremptory jury challenges. This was error because the three defendants had a community of interest which limited the peremptory challenges to three per side. But the error was harmless because Thunderbird and Aetna do not claim prejudice or that the jury was not impartial, and the record does not reflect prejudice or lack of impartiality. Bailey v. Deverick, 142 So.2d 775 (Fla. 2d DCA 1962).

Two witnesses, the former stage manager and the former technical director of the Dinner Theater, were called by Sothern, and over objection of Thunderbird and Aetna permitted to testify as adverse witnesses, although they were no longer employed by Thunderbird. This was error because the determination of whether a witness is an adverse witness is governed by his affiliation with the adverse party on the trial date. Direct Transport Co. of Fla. v. Rakaskas, 167 So.2d 623 (Fla. 3d DCA 1964). The error was harmless, however, because the testimony of the two witnesses was cumulative and concerned the issue of negligence which Thunderbird and Aetna have not raised by this appeal.

Sothern testified, over objection of Thunderbird and Aetna, that she did not know of or accept any workmen's compensation insurance policy. This was not error because the testimony related to issues raised by the pleadings and evidence adduced by Thunderbird and Aetna in support of their theory of the...