Wishart v. Laidlaw Tree Service, Inc., 90-01210
| Decision Date | 18 January 1991 |
| Docket Number | No. 90-01210,90-01210 |
| Citation | 16 Fla. L. Weekly 222,573 So.2d 183 |
| Parties | 16 Fla. L. Weekly 222 Robert WISHART, II, Appellant, v. LAIDLAW TREE SERVICE, INC., a foreign corporation, Appellee. |
| Court | Florida District Court of Appeals |
Mark A. Neumaier, Tampa, for appellant.
Raymond T. Elligett, Jr., and Shirley T. Faircloth of Shackleford, Farrior, Stallings & Evans, Tampa, and Timon V. Sullivan of Gunn, Ogden & Sullivan, Tampa, for appellee.
The appellant (the employee) was injured while on his unpaid one-half hour lunch break when the brakes failed on a flat-bed truck owned by the appellee (the employer), causing the truck to roll into an adjacent work truck, pinning the employee between the two vehicles and causing him serious injury. The accident occurred on February 27, 1989. While the employee was hospitalized for treatment of his injuries, he began to receive payments of worker's compensation benefits and continued to receive such payments until July or early August. At no time did the employee make any claim for worker's compensation benefits.
The employee brought this action against the employer on April 25, 1989, alleging that the accident which caused him injury was due to the negligence of the employer. The employer filed a motion for summary judgment and that motion was granted. Final summary judgment in favor of the employer was entered on February 19, 1990. The employee appeals and we reverse.
The final summary judgment does not set forth the basis upon which summary judgment was granted. However, the parties agree that the trial judge concluded that the employee was not entitled to any recovery against the employer because the employee had received payments of worker's compensation benefits. The parties argue whether the employee thereby made an election of remedies or by accepting the payments is barred from pursuing this action. Acceptance of the payments constitutes no election of remedies and no bar to this action, whether based on waiver or estoppel. See Velez v. Oxford Dev. Co., 457 So.2d 1388 (Fla. 3d DCA 1984).
The facts in Velez are remarkably similar to the facts in this case. The Velez court pointed out that election of remedies by its very terms presupposes that a plaintiff has at least two viable theories upon which recovery may be had. That is not the case with respect to an injured employee. Where an injury is suffered in the course and scope of employment, worker's compensation is the exclusive remedy for...
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...stage of the proceedings to bar Dr. Chiang's contribution claim. Our conclusion flows from our decision in Wishart v. Laidlaw Tree Service, Inc., 573 So.2d 183 (Fla. 2d DCA 1991). In that case, we restated the fundamental proposition embodied in section 440.11 that "[w]here an injury is suf......
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...certain to result in injury simply because some workers' compensation benefits have been paid. See Wishart v. Laidlaw Tree Serv., Inc., 573 So.2d 183, 184 (Fla. 2d DCA 1991); Velez v. Oxford Dev. Co., 457 So.2d 1388, 1390 (Fla. 3d DCA 1984). Precluding a worker from pursuing a remedy for a ......
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Martin Electronics, Inc. v. Jones, 1D03-4091.
...that mere, passive receipt of workers' compensation benefits does not give rise to judicial estoppel. See Wishart v. Laidlaw Tree Serv., Inc., 573 So.2d 183, 184 (Fla. 2d DCA 1991) ("Acceptance of the payments constitutes no election of remedies...."). See also Wheeled Coach Indus. v. Annul......
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Lowry v. Logan, 94-76
...of a conscious intent by the claimant to elect the compensation remedy and to waive his other rights. Wishart v. Laidlaw Tree Service, Inc., 573 So.2d 183 (Fla. 2d DCA 1991); Velez v. Oxford Development Co., 457 So.2d 1388 (Fla. 3d DCA 1984), pet. for rev. denied, 467 So.2d 1000 The case of......