IN THE SUPREME COURT OF FLORIDA CASE NO. SC JOSE VALDES and JUANA VALDES, his wife, Petitioners, vs.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC JOSE VALDES and JUANA VALDES, his wife, Petitioners, vs. GAB ROBINS NORTH AMERICA, INC., SOUTHERN UNDERWRITERS, INC., CAPITAL ASSURANCE SERVICES, INC., CAPITAL ASSURANCE COMPANY, INC., and REGGIE PHILLIPS, Respondents. RESPONDENTS, CAPITAL ASSURANCE, BRIEF ON JURISDICTION ON PETITION FOR REVIEW FROM THE DISTRICT COURT OF APPEALS OF FLORIDA, THIRD DISTRICT CASE NO. 3D FALK, WAAS, HERNANDEZ, CORTINA, SOLOMON & BONNER, P.A. 113 Almeria Avenue Coral Gables, Florida Telephone: (305) Facsimile: (305)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 2 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 6 THE DECISION OF THE THIRD DISTRICT COURT OF APPEALS IS NOT IN DIRECT CONFLICT WITH THE DECISION OF THIS COURT IN AGUILERA v. IN- SERVICES, INC., 905 So. 2d 85 (Fla. 2005) OR THE FOURTH DISTRICT COURT S DECISION IN PROTEGRITY SERVICES, INC. v. VACCERO, 909 So. 2d 445 (Fla. 4 TH DCA 2005). THE THIRD DISTRICT S DECISION IS LIKEWISE NOT IN DIRECT CONFLICT WITH THE DECISIONS RELATING TO PLEADING REQUIREMENTS, RELIED UPON BY PETITIONERS. CONCLUSION... 9 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE ii

3 TABLE OF AUTHORITIES Cases Aguilera v. Inservices, Inc., 905 So. 2d 85 (Fla. 2005)... 3,7 Protegrity Services, Inc. v. Vaccaro, 909 So. 2d 445 (Fla. 4 th DCA 2005)... 3,7 Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975)... 5 Nielson v. City of Sarasota, 117 So. 2d 731, 734 (Fla. 1960)... 5 Other Authorities Fla. Const. Art. V. 3(b)(3)... 7 Section , Fla. Stat.... 3,4 Section , Fla. Stat.... 3,4 Section , Fla. Stat.... 3,4 Fla. R. App. P (a)(2)(A)(iv)... 7 iii

4 iv

5 INTRODUCTION Petitioners, JOSE VALDES and JUANA VALDES seek to invoke this Court s discretionary jurisdiction to review an opinion rendered by the Third District Court of Appeals, affirming the dismissal of the Plaintiffs Amended Complaint based on the failure to state a valid cause of action under any of the various theories asserted therein. In this brief, the parties will be referred to as JOSE VALDES, JUANA VALDES and GAB ROBINS NORTH AMERICA, INC., SOUTHERN UNDERWRITERS, INC., CAPITAL ASSURANCE SERVICES, INC. and CAPITAL ASSURANCE COMPANY, INC. will be referred to collectible as CAPITAL ASSURANCE. Alternatively, the parties will be referred to as Petitioners and/or Respondents. The symbols A will designate the appendix to the Petitioners Amended Brief on Jurisdiction, which consists of the opinion of the Third District Court of Appeals in this case. All emphasis is supplied by counsel unless otherwise indicated. STATEMENT OF THE CASE AND FACTS The Respondents, CAPITAL ASSURANCE, object to the Petitioner s Statement of the Case and Facts as being outside the scope of those factual matters contained in the Third District Court s opinion. In addition, Petitioners Statement fails to contain any citations to the Third District s opinion 1

6 and contains mere conclusory statements unsupported by the record. The Statement of the Case and Facts as derived from the Third District s Opinion, is as follows: On January 15, 1985, JOSE VALDES sustained an on-the job injury while working for a construction company and was declared permanently disabled. From 1984 through 1999, JOSE VALDES received total disability benefits from his employer s workers compensation insurance. (A.1). In 1999, Appellees had VALDES videotaped while engaged in a number of physical activities. VALDES subsequently was queried during a deposition about the activities captured on videotape and then was reported to the State of Florida Division of Insurance Fraud for engaging in insurance fraud. (A.2). On December 9, 1999, VALDES was arrested by the State and charged with Workers Compensation/Misrepresentation By False or Misleading Statement, a second degree felony. (A.-2). His workers compensation benefits were terminated the following day. The criminal charges against VALDES were ultimately dropped and VALDES was paid the workers compensation benefits owed from the time they were terminated. (A.2). In November of 2002, VALDES and his wife filed suit against CAPITAL ASSURANCE COMPANY, INC. and its predecessor, SOUTHERN 2

7 UNDERWRITERS, INC. the workers compensation insurance carrier responsible for JOSE VALDES s benefits. The VALDES s also sued the claims adjustment firm, GAB ROBBINS NORTH AMERICA, INC. and its employee, REGGIE PHILLIPS. (A.3). The Third District noted that the [Corrected Amended] Complaint, without distinguishing between individual defendants, attempted to allege causes of action sounding in civil conspiracy, false imprisonment, malicious prosecution, abuse of legal process, outrageous conduct, intentional infliction of emotional distress and loss of consortium. (A.3). CAPITAL ASSURANCE moved to dismiss, claiming immunity under sections , and of the Florida Statutes and claiming that the [Corrected Amended] Complaint failed to state a cause of action under any of the seven claims asserted. (A.3). The trial court agreed with the defendants as to both reasons and dismissed all seven claims. (A.3). GAB ROBBINS, which had previously answered the Corrected Amended Complaint, moved for judgment on the pleadings based on the dismissal of the Complaint as to the other Defendants. (A.3). After VALDES declined to amend, the action was dismissed with prejudice as to all Defendants. (A.3). The Third District Court affirmed the dismissal of all counts based on the determination that the [Corrected Amended] 3

8 Complaint failed to allege the essential elements of each of the enumerated causes of action. Given that the affirmace was based on the failure to state a cause of action, the Third District Court did not address the issue of the Respondent s entitlement to immunity under sections , or , Florida Statutes. (A.9). The Plaintiffs/Appellants/Petitioners filed a Motion for Rehearing, which was denied on April 18, SUMMARY OF THE ARGUMENTS Petitioners seek to invoke this Court s jurisdiction on the basis of an alleged direct conflict between the decision of the Third District Court of Appeals and the decision of this Court in Aguilera v. Inservices, Inc., 905 So. 2d 85 (Fla. 2005), as well as with the Fourth District Court of Appeals decision in Protegrity Services, Inc. v. Vaccaro, 909 So. 2d 445 (Fla. 4 th DCA 2005). Finally, Petitioners assert that the Third District Court s decision conflicts with decisions of this Court and other appellate court s setting forth the minimum requirements for pleading a cause of action for claims such as intentional infliction of emotional stress and false imprisonment. The decision of the Third District Court of Appeals, however, is not in express or direct conflict with any of the cited decisions. 4

9 This case and the decision of the Third District Court in affirming the dismissal by the trial court, focused on the absence of allegations in the Amended Complaint sufficient to establish a valid cause of action pursuant to the various theories enumerated therein. Despite an additional opportunity to amend the complaint at the trial court level, Plaintiff/Petitioners refused the offer and chose to stand on the allegations of the Corrected Amended Complaint. The Third District Court s decision addressed the inadequacies of the Plaintiffs allegations, in affirming the trial court s dismissal. Given the basis for the affirmance, the Third District Court did not reach or address the applicability of the statutory immunities relative to the reporting of workers compensation insurance fraud. This Court s decision in Aguilera, as well as the Fourth District s decision in Protegrity Services, dealt with the application of the statutory immunity provided under the workers compensation statute. Under these circumstances, the Third District Court s decision is not in direct conflict with either this Court s decision in Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005) or the Fourth District s decision in Protegrity Services, Inc. v. Vaccero, 909 So. 2d 445 (Fla. 4 th DCA 2005), nor does direct conflict exist as to the additional 5

10 decision cited by Petitioners, relative to the requirements for pleading the pertinent causes of action. There is no conflict which would support the exercise of this Court s discretionary jurisdiction. ARGUMENT THE DECISION OF THE THIRD DISTRICT COURT OF APPEALS IS NOT IN DIRECT CONFLICT WITH THE DECISION OF THIS COURT IN AGUILERA v. IN SERVICES, INC., 905 So. 2d 85 (Fla. 2005) OR THE FOURTH DISTRICT COURT S DECISION IN PROTEGRITY SERVICES, INC. v. VACCERO, 909 So. 2d 445 (Fla. 4 TH DCA 2005). THE THIRD DISTRICT S DECISION IS LIKEWISE NOT IN DIRECT CONFLICT WITH THE DECISIONS RELATING TO PLEADING REQUIERMENTS, RELIED UPON BY PETITIONERS. Petitioners seek to invoke this Court s conflict of law jurisdiction. This Court s discretionary review is restricted to a decision of the district court that: expressly and directly conflicts with the decisions of another district court of appeal or of the supreme court on the same question of law. See Art. V, 3(b)(3), Fla. Const. See also Fla. R. App. P (a)(2)(a)(iv). The petitioners contend that the instant Third District decision is in conflict with the decision of this Court in Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005) and the Fourth District s decision in Protegrity Services, Inc. v. Vaccero, 909 So. 2d 445 (Fla. 4 th DCA 2005). There is no basis for the exercise of this Court s jurisdiction because the decision of the Third District Court neither announced a rule of 6

11 law conflicting with a rule previously announced by this Court or of the Fourth District, nor did it apply a rule of law to produce a substantially different result in a case which involved substantially the same facts as a prior case. See Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975); Nielson v. City of Sarasota, 117 So. 2d 731, 734 (Fla. 1960). This Court s decision in Aguilera v. Inservices, Inc., supra, involved the interpretation and application of the statutory immunity established under the Workers Compensation Act. Specifically, Aguilera, supra, dealt with the determination of whether or not the general immunity provided under the workers compensation statute, precluded the claimant s causes of action. As a consequence, the Aguilera, case did not turn on the sufficiency of the allegations to state a cause of action. Likewise, in Protegrity Services, supra, the Fourth District likewise dealt with the application of the workers compensation immunity. In the present matter, the Third District Court s decision, in affirming the trial court s dismissal of the Plaintiffs Amended Complaint, was not premised on the existence or nonexistence of a statutory immunity. Rather, the Third District s affirmance was based on the insufficiency of the allegations asserted by the petitioners, in support of their underlying 7

12 causes of action. As a consequence, the Third District Court s decision is not in direct conflict with the decision in either Aguilera v. Inservices, Inc., supra or Protegrity Services, Inc., supra. Specifically, the Third District Court s decision neither announces a conflicting rule of law, nor applies the rule of law to produce a substantially different result in a case involving substantially similar facts. As a final matter, Petitioners have likewise failed to support the existence of an express or direct conflict between the Third District s decision and any decision of this Court or of any other district court, relative to the sufficiency of allegations to state a cause of action, and therefore no basis exists to support this Court s discretionary review on this ground. CONCLUSION In considering whether it has conflict jurisdiction under Article V, 3(b)(3), the Court must be mindful that the district courts of appeal are Florida s courts of last resort in almost all cases, and it must guard against becoming a court of selected errors. Nielsen v. City of Sarasota, 117 So.2d 731 (Fla. 1960). Whether this Court would have decided the matter as the Third District Court did is not the jurisdictional issue. 8

13 Rather, the focus is on maintaining the uniformity of this State s court made law. The Third District Court of Appeals decision in the present case does not expressly or directly conflict with a decision of this Court or with the decision of any of the other District Court of Appeals, relied upon by Petitioner as a basis to support the exercise of this Court s discretionary jurisdiction. The arguments raised in support of jurisdiction amount to a mere challenge of the correctness of the District Court s decision, without demonstrating that an express or direct conflict exists. The Supreme Court of Florida was never intended to be the court of final appellate jurisdiction for purposes of reviewing district court decisions which did not expressible or directly conflict with other appellate court decisions. As a result, and given that this case does not fall within this Court s discretionary jurisdiction, the Petition should be dismissed. Respectably submitted, Paul H. Field SIGNED ELECTRONICALLY Paul H. Field, Esq. Florida Bar No.:

14 CERTIFICATE OF SERVICE WE HEREBY certify that a true and correct copy of the foregoing has been furnished to: Rebecca B. Watford, Esq., Counsel for Petitioner, 7685 S.W. 104 th St., Suite 200, Miami, Florida 33156; Charles R. Lipcon, Esq., Co-counsel for Petitioners, Lipcon, Margulies, & Alsina, P.A., One Biscayne Tower, Suite 2480, 2 South Biscayne Boulevard, Miami, Florida 33131; and Warren Kwavnick, Esquire, Cooney, Mattson, Lance, Blackburn, Richards & O Connor, P.A., 2312 Wilton Drive, P.O. Box 14546, Ft. Lauderdale, Florida 33302;, by mail on this 14 th day of July, FALK, WAAS, HERNANDEZ, CORTINA, SOLOMON & BONNER, P.A. 113 Almeria Ave. Coral Gables, Florida Phone (305) Fax (305) Paul H. Field SIGNED ELECTRONICALLY Paul H. Field Florida Bar No

15 CERTIFICATE OF COMPLIANCE I HEREBY certify that the Respondents, SOUTHERN UNDERWRITERS, INC., CAPTIAL ASSURANCE SERVICES, INC. and CAPITAL ASSURANCE COMPANY, INC. Brief on Jurisdiction was prepared using Courier New 12-point font in compliance with Rule 9.210(a)(2), Florida Rules of Appellate Procedure. FALK, WAAS, HERNANDEZ, CORTINA SOLOMON & BONNER, P.A. 113 Almeria Ave. Coral Gables, Florida Phone (305) Fax (305) Paul H. Field SIGNED ELECTRONICALLY Paul H. Field Florida Bar No