Tucker v. JOHN GALT INS. AGENCY CORP.

• Decision Date: 17 September 1999
• Docket Number: No. 98-2707.,98-2707.
• Citation: 743 So.2d 108
• Court: Florida District Court of Appeals
• Parties: Robin TUCKER, as Assignee of Palm Beach Nightclub Enterprises, Inc., Appellant, v. JOHN GALT INSURANCE AGENCY CORPORATION, f/k/a Carpenter & Rudd Insurance Agency Corporation, Appellee.

743 So.2d 108

Robin TUCKER, as Assignee of Palm Beach Nightclub Enterprises, Inc., Appellant, v.JOHN GALT INSURANCE AGENCY CORPORATION, f/k/a Carpenter & Rudd Insurance Agency Corporation, Appellee.

No. 98-2707.

District Court of Appeal of Florida, Fourth District.

September 17, 1999.

Kevin F. Richardson of Clyatt & Richardson, P.A., West Palm Beach, for appellant.

Kenneth R. Drake of Smith Demahy & Drake, P.A., Miami, for appellee.

GROSS, J.

The narrow issue in this case is whether, in an action brought by an employer against an insurance agent for the breach of a contract to provide workers' compensation insurance coverage, the employer must seek all of its potential damages in one case.We hold that an employer may bring a separate action each time its liability to the employee is fixed by an order in the compensation proceeding.Therefore, we reverse the summary judgment entered in favor of the appellee.

In September, 1992, Palm Beach Nightclub Enterprises, Inc.("the Nightclub") retained insurance agent, John Galt Insurance Agency Corporation¹("Galt") to procure workers' compensation coverage effective on October 13, 1992.The insurance Galt procured did not become effective until October 16, 1992.

While on the job with the Nightclub, Robin Tucker was injured on October 15, 1992, the day before the workers' compensation coverage became effective.Tucker filed a compensation claim against the Nightclub.A September 24, 1993 compensation order entered after a merits hearing determined those benefits due Tucker from the Nightclub at that time.The Nightclub filed suit against Galt in 1993, alleging that Galt had wrongfully failed to obtain workers' compensation coverage, so that the company had no coverage for Tucker's claim.

In late 1993, Tucker filed a rule nisi action in the circuit court against the Nightclub, seeking to enforce the September compensation order.Section 440.24, Florida Statutes(1997), provides the circuit court with jurisdiction to enforce orders entered by a judge of compensation claims, via what the statute refers to as a rule nisi.A rule nisi procedure is necessary because a judge of compensation claims does not have the authority to enforce his or her own orders.SeeFrank v. Crawford & Co.,670 So.2d 117, 118(Fla. 4th DCA1996).

In March, 1994, Tucker and the Nightclub partially settled the rule nisi proceeding.As part of the settlement, the Nightclub assigned Tucker all of its claims against Galt.Tucker was substituted as the partyplaintiff in the lawsuit the Nightclub had filed against Galt.On August 29, 1994, the circuit court awarded Tucker $42,015.45 in the rule nisi proceeding, pursuant to the September, 1993 compensation order.The circuit court's judgment provided that Tucker was "entitled to future compensation and medical benefits" from the Nightclub, to be determined by the judge of compensation claims.The court reserved jurisdiction to enter "such additional orders as may be reasonable and necessary to enforce any future orders" of the judge of compensation claims.

In December, 1995, the Nightclub's claim against Galt, where Tucker had been substituted as a plaintiff, proceeded to a non-jury trial.The trial court found that Galt had breached its contract to provide the Nightclub with workers' compensation coverage and awarded the $42,015.45 determined to be owed in the rule nisi proceeding.²The court reserved jurisdiction to enter "such further orders as may be reasonable, necessary, and just."Galt appealed this judgment, which was affirmed by this court.SeeCarpenter & Rudd Ins. Agency v. Tucker,690 So.2d 597(Fla. 4th DCA1997).

While the first judgment was pending on appeal, the judge of compensation claims entered an order in March, 1996, requiring the Nightclub to pay an additional $30,721.10 in workers' compensation benefits.On April 27, 1997, in the rule nisi proceeding, the circuit court entered a judgment pertaining to the March, 1996 compensation order.This judgment ruled that Tucker was entitled to recover $35,410.13 from the Nightclub, which included the $30,721.10 from the March, 1996 compensation order, plus interest and attorney's fees.The judgment specified that the amounts it awarded were "in addition to the amounts previously awarded (Tucker) by this Court's August 29, 1994" judgment in the same rule nisi proceeding.

On May 23, 1997, Tucker filed her complaint in this action as the assignee of the Nightclub, seeking recovery of damages based on the March 6, 1996 workers' compensation order and the April 21, 1997 judgment of the circuit court.Each party moved for summary judgment.The trial court denied Tucker's motion and granted Galt's, ruling that the suit was barred by the rule against splitting causes of action.The court entered final judgment in favor of Galt.

The "rule against splitting causes of action makes it incumbent upon plaintiffs to raise all available claims involving the same circumstances in one action."Department of Agriculture and Consumer Servs. v. Mid-Florida Growers, Inc.,570 So.2d 892, 901(Fla.1990).As the supreme court explained in Mid-Florida Growers:

The rule against splitting causes of action is predicated on the following basic policy considerations: (1) finality in courtcases promotes stability in the law; (2) multiple lawsuits arising out of a single incident are costly to litigants and an inefficient use of judicial resources; and (3) multiple lawsuits cause substantial delay in the final resolution of disputes.

Id.(citations omitted);seeAlvarez v. Nestor Salesco, Inc.,695 So.2d 941, 942(Fla. 4th DCA1997)(quotingGaynon v. Statum,151 Fla. 793, 10 So.2d 432, 433(1942)).³The rule should not be mindlessly and inflexibly applied without regard to the reasons for its application, when to do so would defeat the ends of justice.SeeRosenthal v. Scott,150 So.2d 433, 438(Fla.1961);Eagle-Picher Indus., Inc. v. Cox,481 So.2d 517, 521(Fla. 3d DCA1985).

This case does not involve the splitting of a cause of action in violation of the rule.The Nightclub's claim against Galt based on the March, 1996 order of the judge of compensation claims had not yet accrued when the case based on the September, 1993 compensation order was decided.In the language of Mid-Florida, the March, 1996 order was not an "available claim" at the time of the final judgment in the first Nightclub/Galt lawsuit.The trial court's dismissal in this case failed to take into consideration the way that payments are made to a claimant under the workers' compensation statute.

Generally, workers' compensation benefits are paid periodically, "in biweekly installments or as otherwise provided in § 440.15."§ 440.20(2), Fla. Stat.(1997).For example, wage-loss claims must be filed on a month-by-month basis, and each request for wage-loss benefits constitutes a new and separate claim.SeeWiley Jackson Co. v. Webster,522 So.2d 987(Fla. 1st DCA1988);Regency Inn v. Johnson,422 So.2d 870, 881(Fla. 1st DCA1982)(on denial of rehearing of en banc decision).Outside of a lump sum payment under subsections 440.20(11) and (12), Florida Statutes(1997), the workers' compensation act contemplates that medical treatment will be provided and benefits will be paid periodically for "such period as the nature of the injury or the process of recovery may require."§ 440.13(2)(a), Fla. Stat.(1997).Such periodic payments assures "the quick and efficient delivery of disability and medical benefits to an injured worker and ... facilitate[s] the worker's return to gainful reemployment at a reasonable cost to the employer."§ 440.015, Fla. Stat.(1997).

Under the normal course of a Chapter 440 proceeding, Tucker could not recover future workers' compensation benefits until the end of the time period for which such payments were due.SeeSimmons v. Tropicana Prods., Inc.,457 So.2d 581(Fla. 1st DCA1984)(holding that workers' compensation disability claims for July and August were not ripe for a July hearing and therefore should not have been barred at a subsequent November hearing);§ 440.20, Fla. Stat.(1997).This is in contrast to the recovery of future damages in a tort case, where future damages are estimated and reduced to present value.

As the Nightclub's assignee, Tucker stood in the Nightclub's shoes in its claim against Galt.The trial court ruled that Galt had breached its contract to provide the Nightclub with workers' compensation coverage.This holding obligated Galt to pay as damages what the Nightclub became obligated to pay Tucker as her employer under the workers' compensation act.The failure to pay each amount of damages when it was liquidated by the order of the compensation judge was a separate breach of the contract to provide insurance coverage to the nightclub.At the time of the 1995 judgment in the first circuit court case, the judge of compensation claims had issued only the September, 1993 compensation order.The cause of action for the damages at issue in this case did not accrue until March, 1996, when the judge of compensation claims issued the second order, which identified those compensation benefits that became due after the September, 1993 order.As her employer,...