3d DCA Watch -- The Jungle Line Edition.

Is it just me or is it getting hot out there?


(Time to turn up the AC in the bunker.)

Hmm, how much does elemental fairness play into the 3d DCA's decisionmaking process?

Consider this opinion, in which Judges Suarez and Shepherd disagree about whether Ocean Reef Club has worker's comp immunity when it failed to report the workplace injury to its worker's comp carrier:

Wilczewski and Leon worked at a beauty salon owned by Ocean Reef. Wilczewski was employed as a hairstylist and Leon as a nail technician. Wilczewski and Leon allege to have been exposed to chemical fumes inherent in the operation of the beauty salon which caused them to experience asthma-like symptoms, headaches and respiratory problems over a period of time for which they had to receive medical treatment and hospitalization. Wilczewski and Leon claim they notified their supervisor of their health issues, but, while they were employed, neither they nor Ocean Reef notified the workers’ compensation insurance carrier. It was not until after Wilczewski and Leon brought a civil action for damages against Ocean Reef, that Ocean Reef notified the workers’ compensation insurance carrier of the claims. The carrier denied the claims contending that the illnesses did not occur in the course and scope of employment. The claims also were denied because the statute of limitations had run.

 Here is what Judge Suarez held:

It would be inequitable for the employer, through its insurance carrier, to take the position that there were no work-related injuries and hence no workers’ compensation coverage, and then later, when the employee brings a tort action against the employer, to assert as a defense at law that there was workers’ compensation coverage entitling the employer to immunity from suit. As the employer may not separate itself from its compensation carrier’s determination that the employee’s injuries did not occur during the course and scope of employment, the employer is estopped from taking the totally inconsistent position that the injuries did occur during the course and scope of employment and claim worker’s compensation immunity when sued in tort.

But Judge Shepherd says it is all about the injured workers being "liberated" to sue:

The issue in this case is whether the alleged failure of an employer to report a workplace injury to his workers’ compensation carrier, pursuant to section 440.185(2) of the Florida Statutes (2006), liberates the employee to sue the employer for workplace negligence. The answer to the question is “no.”

In short Judge Shepherd believes it is the injured employee's responsibility to file the worker's comp claim, not the employer, and the employer is not bound by a determination of its insurance carrier:

As to their first argument, I already have demonstrated that Wilczewski and Leon were personally, legally responsible to initiate the benefits delivery process on their own behalf if they wish to receive them.  As to the actual denial, it appears this action was commenced sua sponte by Ocean Reef’s workers’ compensation insurance carrier. There is no evidence Ocean Reef encouraged, requested, or participated in this act by the carrier.

Here is his conclusion:

Wilczewski and Leon both admit in the case before us that they knew of the compensable character of their respective claims before they resigned their positions at Ocean Reef in 2006, but made no effort to protect their rights, or, for that matter, to inquire of their employer why the benefits they fully believed were theirs had not flowed to them. Unlike Timmeny, Wilczewski and Leon’s first claim for compensation was in its counsel-filed complaint years after leaving the employment of Ocean Reef. Judicial estoppel does not and should not apply to cases of this type.

Question -- what does "counsel-filed" mean?

Broin v. Philip Morris:

Judge Bagley's disqualification of "counsel-filers" Steven Hunter and Phil Gerson in dispute over flight attendant research fund reversed.