IN THE SUPREME COURT OF FLORIDA. OCEAN REEF CLUB, INC., a Florida corporation, CHERRYE WILCZEWSKI and LAURA LEON,

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1 IN THE SUPREME COURT OF FLORIDA CASE NO.: SC S OCEAN REEF CLUB, INC., a Florida corporation, Petitioner, v. CHERRYE WILCZEWSKI and LAURA LEON, Respondents. RESPONDENTS' BRIEF ON JURISDICTION By: G. Bart Billbrough 100 Almeria Avenue, Suite 320 Coral Gables, Florida bbillbrough@attyfla.com Tel: (305) Fax: (305) Counselfor Respondents 100 ALME1UA AVENUE - SUrrE 320 CORAL GABLES, FLORIDA TELEPHONE FAX

2 TABLEOFCONTENTS TableofContents Page... i Table of Authorities ii Introduction... 1 Statementofthe CaseandFacts... 1 SummaryoftheArgument... 4 Argument... 5 THEDECISIONBELOWDOESNOTCREATEABASIS FOR JURISDICTION IN THIS COURT BECAUSE THERE IS NO DIRECT AND EXPRESS CONFLICT BETWEEN THE THIRD DISTRICT'S DECISION AND THE DECISIONS OF OTHER DISTRICT COURTS OF APPEAL OR THIS COURT ON THE SAME ISSUE OF LAW. Conclusion CertificateofService CertificateofCompliance ALMEIUA AVENUE SurrE 320 CORAL GABLEs, FLORIDA TELEPHONE FAX

3 TABLE OF AUTHORITIES Cases Page Byerley v. Citrus Publ'g, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999) , 9 Elliott v. Dugger, 579 So.2d 827 (Fla. 1st DCA 1991) , 9 Florida Power & Light v. Bell, 113So.697(Fla.1959)... 6 Jenkins v. State, 385 So.2d 1356 (Fla. 1980) Mena v. JI.L. Constr. Group Corp., 79 So.3d 219 (Fla. 4th DCA 2012) , 9 Quality Shell Homes & Supply Co., Inc. v. Roley, 186So.2d837(Fla. lstdca 1966).... 8,9 Schroeder v. Peoplease Corp., 18 So.3d 1165(Fla. 1stDCA2009)... 8,9 Timmeny v. Tropical Botanicals Corp., 615 So.2d 811 (Fla. 1st DCA 1993) , 7 Tractor Supply Co. v. Kent, 966 So.2d 978 (Fla. 5th DCA 2007) , 9 Rules and Statutes Fla. R. App. P (a)(2)(A)(iv) , 5, 10 Section440.11(1)(a),Fla.Stat Section (2),Fla.Stat....3,4,6,7,8,10 -ll- 100 ALMERIA AVENUE SurrE 320 CORAL GABLES, FLORIDA TELEPHONE FAx

4 INTRODUCTION The Petitioner, Ocean Reef Club, Inc., seeks discretionary review ofthe Third District's opinion affirming the trial court's denial ofpetitioner's motion for summary judgment on the basis of workers' compensation tort immunity. Fla. R. App. P (a)(2)(A)(iv). The Petitioner, Ocean ReefClub, Inc., a Florida corporation, was the defendant in the trial court and the appellant in the Third District. In this brief, it is referred to as Petitioner or as Ocean Reef. The Respondents, Cherrye Wilczewski and Laura Leon, were plaintiffs in the trial court and appellees in the Third District. In this brief, they are referred to as Respondents or as Wilczewski and Leon. References to the Petitioner's appendix, which is comprised of the Third District's opinion, will be designated by the letter "A" and the appropriate page number. STATEMENT OF THE CASE AND FACTS Both Wilczewski and Leon commenced civil tort actions for damages against Ocean Reefalleging health issues that required medical treatment and hospitalization as a result of exposure to chemical fumes during their employment with Ocean Reef. A2. According to both Wilczewski and Leon, they notified their supervisor of their ALMERIAAVENUE SurrE 320 CORAL GABLES, FLoiuDA TELEPHONE FAx

5 health issues during their employment with Ocean Reef. A2. However, Ocean Reef's workers' compensation carrier was not notified about Wilczewski and Leon's possible claims for benefits during their employment. A2. Instead, Ocean Reef notified its workers' compensation carrier about the possible claims after Wilczewski and Leon filed their respective lawsuits, when they were no longer employed by Ocean Reef. A2. Upon notification from Ocean Reef, the workers' compensation carrier denied the claims on the basis that Wilczewski and Leon's health issues did not occur in the course and scope of employment. A2. Moreover, the workers' compensation carrier denied the claims due to running of the statute of limitations. A2. In response to Wilczewski and Leon's lawsuits, Ocean Reef moved for summary judgment. A3. When moving for summary judgment, Ocean Reef acknowledged that Wilczewski and Leon's health issues were work-related. A3. As such, Ocean Reef argued that it was immune from suit due to workers' compensation immunity. A3. At the hearing on Ocean Reef's motion for summary judgment, Ocean Reef conceded it had received notice from Wilczewski and Leon about their injuries, but argued that summary judgment on workers' compensation immunity should be entered in its favor because Wilczewski and Leon did not file claims for benefits with Ocean Reef's workers' compensation carrier. A3-4. The trial court ALMERIAAVENUE SurrE CORAL GABLES, FLotuDA TELEPHONE FAx

6 denied Ocean Reef's motion for summary judgment, ruling that workers' compensation immunity was not available as a matter of law. A3. In its appeal to the Third District, Ocean Reefraised the same argument it had made when moving for summary judgment- that workers' compensation immunity under Section (1)(a), Fla. Stat., bars a negligence suit by Wilczewski and Leon. A3. Affirming the trial court's ruling, the Third District found that the record substantiated Wilczewski and Leon's claims about notifying their supervisor oftheir health issues, and Ocean Reef conceded it had such knowledge, but had failed to notify its carrier. A4. Based on Ocean Reef's knowledge of and failure to report the claims, the Third District found that Ocean Reef could not subsequently claim workers' compensation immunity as a result ofwilczewski and Leon's failure to file claims for benefits with the carrier. A4. Indeed, by shirking its statutory duty under Section (2), Fla. Stat., to notify its carrier, the Third District found that Ocean Reef was estopped from claiming tort immunity in Wilczewski and Leon's civil actions for damages. A4-6. According to the Third District, Ocean Reef waited to notify the carrier until Wilczewski and Leon were no longer in its employ and once notified, the carrier denied the claims because the alleged health issues did not occur in the course and scope of employment and were time barred. A6. The Third District found Ocean ALMERIA AVENUE SurTE 320 CORAL GABLES, FLORIDA TELEPHONE FAx

7 Reef's assertion of workers' compensation immunity clearly irreconcilable with the carrier's reason for denial, which was "imputed" to Ocean Reef. A6. In other words, Ocean Reefcould not on the one hand deny that Wilczewski and Leon's health issues were work-related, as reflected in the carrier's denial of coverage, while on the other hand suggest that Wilczewski and Leon's health issues were work-related in order to assert the workers' compensation tort immunity defense. A6-7. After motions for rehearing and rehearing en banc were denied in the Third District, A31, this discretionary proceeding ensued. SUMMARY OF THE ARGUMENT This Court's conflict jurisdiction is based not upon a party's contention, but rather is based upon the question of whether a district court's decision is in express and direct conflict on the same issue oflaw. There is no direct and express conflict with another decision of another district court of appeal or this Court on the same question of law. The cases cited that supposedly conflict with the Third District's opinion below do not involve the same question of law and are not based on the same set of facts, which defeats conflict jurisdiction in this Court. The legal issue in our case was whether a statutory failure to report a known and noticed employee workplace injury, in violation of the employer's duties under Section (2), Fla. Stat., which operated to foreclosure administrative benefits, ALMERIA AVENUE SurrE 320 CORAL GABLEs, FLORIDA TELEPHONE FAX

8 precluded an employer from thereafter invoking workers' compensation immunity. Ours is the only case which has ever squarely addressed this issue and no other case has even touched upon the specific issue of law involved. As such, there are no other cases which can stand in direct and express conflict with our case on the same point of law so as to create conflict jurisdiction. ARGUMENT THE DECISIONBELOWDOES NOT CREATE A BASIS FOR JURISDICTION IN THIS COURT BECAUSE THERE IS NO DIRECT AND EXPRESS CONFLICT BETWEEN THE THIRD DISTRICT'S DECISION AND THE DECISIONS OF OTHER DISTRICT COURTS OF APPEAL OR THIS COURT ON THE SAME ISSUE OF LAW. Pursuant to Fla. R. App. P (a)(2)(A)(iv), this Court has discretionary jurisdiction to review "decisions ofthe district courts ofappeal that... expressly and directly conflict with a decision of another district court of appeal or ofthe supreme court on the same issue of law."' The situations justifying the invocation of jurisdiction to review district court decisions because ofalleged conflicts are: (1)the announcement of a rule of law which conflicts with a rule previously announced by this or another court, or (2) the application of a rule of law to produce a different result in a case which involves substantially the same controlling facts as a prior, ' The standard of appellate review is accordingly de novo ALMERIAAVENUE SurrE 320 CORAL GABLES, FLotuDA TELEPHONE FAx

9 allegedly conflicting case. Nielsen v. City ofsarasota, 117 So.2d 731 (Fla. 1960). Under the first situation, the facts are immaterial. It is the announcement of a conflicting rule of law that conveys jurisdiction to review the decisions. Under the second situation, the controlling facts become vital and this Court's jurisdiction may be asserted only where the district court has applied a recognized rule of law to reach a conflicting conclusion in a case involving substantially the same controlling facts as were involved in allegedly conflicting prior decisions. See Florida Power & Light Co. v. Bell, 113 So. 697 (Fla. 1959).2 In this case, we have neither situation. In the instant case, an employer with actual notice and knowledge ofemployee injuries failed to notify its workers' compensation carrier of those injuries, in violation of Section (2), Fla. Stat. When a civil lawsuit was filed, the employer then notified the workers' compensation carrier, which denied coverage on the grounds that there had been no workplace injury and because the statute of limitation had run. The employer nonetheless sought to defeat the employee claims on the basis of workers' compensation immunity. "[B]ased on the facts of these cases", A3, the Third District found Ocean Reef was estopped from invoking such a defense. The first case cited as a purported basis for conflict is Timmeny v. Tropical 2 To be "express", the conflict must be present "in an express manner." Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980) ALMERIA AVENUE - SurTE 320 CORAL GABLES, FLORIDA TELEPHONE FAx

10 Botanicals Corp., 615 So.2d 811 (Fla. 1st DCA 1993). The Timmeny court held that where the employer/carrier did not afford adequate notice to the claimant of a possible entitlement to disability benefits during the limitation period, the E/C was estopped from asserting the statute of limitation defense in the workers' compensation case until the claimant was first notified that his condition was compensable. Timmeny, 615 So.2d at 182. Timmeny is a workers' compensation case involving a statute of limitation issue, not a civil tort case involving workers' compensation immunity. Timmeny's holding focuses on how a statute of limitations is applied, and the instant case involves whether a workers' compensation immunity defense can be equitably asserted where the employer failed to comply with its statutory obligations for a known and noticed employee injury and workers' compensation benefits are no longer available. There is no express and direct conflict between our case and Timmeny because they considered different points oflaw, involved different holdings, and the issues arose under very different factual circumstances.3 3 This likewise addresses the citation of the cases found in the Petitioner's jurisdictional brief in footnotes 4 and 5 on page 12. Each of these cases are workers' compensation cases dealing with the appropriate application of a statute of limitation, not a civil case involving estoppel to assert workers' compensation immunity. Neither Timmeny nor the cases cited in the footnote even addressed the legal issue here -that failure to comply with Section (2)can result in a loss of tort immunity ALMEIUA AVENUE SurrE 320 CORAL GABLES, FLoiuDA TELEPHONE FAx

11 Next, Ocean Reefcites Mena v. J.1.L. Constr. Group Corp., 79 So.3d 219 (Fla. 4th DCA 2012); Tractor Supply Co. v. Kent, 966 So.2d 978 (Fla. 5th DCA 2007); Byerley v. Citrus Publishing, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999); Quality Shell Homes & Supply Co. v. Roley, 186 So.2d 837 (Fla. 1st DCA 1966); Elliott v. Dugger, 579 So.2d 827 (Fla. 1st DCA 1991); and Schroeder v. Peoplease Corp., 18 So.3d 1165 (Fla. 1st DCA 2009), as a basis for conflictjurisdiction. The Petitioner's argument is that the estoppel in each of these cases was predicated on the fact that there had been a prior denial of workers' compensation benefits in the comp arena and then a conflicting position taken in the subsequent civil litigation regarding availability ofsuch benefits. Since there had never been a compensation court denial of benefits, Ocean Reef argues, there can be no estoppel and the Third District's opinion conflicts with those cited holdings. Each ofpetitioner's cited cases arose from an existing workers' compensation claim being denied, and the employer then invoking the availability of workers' compensation benefits as a defense to a subsequent civil case. Not one of the cited cases involved the same facts as ours nor addressed the legal issue in our case - the legal effect ofthe employer's failure to comply with the statutory notice requirements found in Section (2), Fla. Stat. Not one of Petitioner's cited cases involved a breach ofthis statutory duty to report known and noticed workplace injuries and the ALMERIA AVENUE SurrE 320 CORAL GABLES, FLORIDA TELEPHONE FAx

12 legal effect of such conduct on an affirmative defense of workers' compensation immunity.4 This second conflict argument is remarkably misleading because no workers' compensation proceedings ever occurred because no notice was ever provided to the employees about their rights. The factual predicate for our case's holding is that Ocean Reef was on actual notice of a workplace injury; violated its statutory obligation to report it to the carrier upon that notice; submitted the claim to its carrier upon the civil suits; and received a denial ofworkers' compensation benefits because the injuries were not related to employment and because the statute of limitations had run. Despite this, Ocean Reef asserted workers' compensation immunity, which the Third District rejected due to the failure to comply with the notice statute, which precluded benefits to the Respondents. Neither Mena, Tractor Supply, Byerley, Quality Shell, Elliott, nor Schroeder involved such a failure or a discussion of the legal ramifications of that failure. This Court's conflict jurisdiction is based not upon a party's contentions, but rather is based upon the question of whether a district court's decision is in express * In our case, the issue was whether workers' compensation immunity could be invoked when workers' compensation benefits were unavailable due to the statutory violation by the employer, and the legal import of the employer's inconsistent assertion ofworkers' compensation immunity as a defense in the civil proceedings ALMEIUAAVENUE SurrE 320 CORAL GABLEs, FLORIDA TELEPHONE FAx

13 and direct conflict on the same issue of law. The legal issue in our case was whether a statutory failure to report a known and noticed employee workplace injury, in violation of the employer's duties under Section (2), Fla. Stat., which operated to foreclosure administrative benefits, precluded an employer from thereafter invoking workers' compensation immunity. Ours is the only case which has ever addressed this issue and no other case has even touched upon the issue of law involved. As such, there are no other cases which can stand in direct and express conflict with our case on the same point of law so as to create conflict jurisdiction. CONCLUSION Since the instant case does not expressly and directly conflict with the cases cited by Ocean Reef, this Court does not have discretionary jurisdiction under Fla. R. App. P (a)(2)(A)(iv) to review this matter. As such, this Court should deny Ocean Reef's request for this Court to accept jurisdiction to review the Third District's decision in this case. Attorneys for Respondents 100 Almeria Avenue, Suite 320 Coral Gables, Florida Tel: (305) Fax: (305) By: G. Êart Billb u Florida Bar.: ALMERIA AVENUE SurrE 320 CORAL GABLES, FLORIDA TELEPHONE FAx

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy hereofhas been served by this 16* day of January, 2013 upon: Raul De La Heria, Esq., raul@delaheria.com, De La Heria & Associates, P.A., 2100 Coral Way, Suite 500, Miami, FL 33145; Lawrence J. McGuinness, Esq., ljmpalaw@comcast.net, Lawrence J. McGuinness, P.A., 1627 S.W. 37* Avenue, Suite 100, Miami, FL 33145; Pamela A. Chamberlin, Esq., pchamberlin@mitrani.com, Mitrani, Rynor Adamsky & Toland, P.A., 2200 SunTrust International Center, One Southeast Third Avenue, Miami, FL and Elena B. Goodman, Esq., egoodman@mitrani.com, Mitrani, Rynor, Adamsky & Toland, P.A., 2400 North Commerce Parkway, Suite 302, Weston, FL By: G. Bart Billbr ug Roman 14pt. CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing answer brief was typed in Times New L:\ \SC\B\RospondentsBriefonJurisdiction wpd By: G. Bart Billbrou ALMERIA AVENUE SurrE 320 CORAL GABLES, FLotuDA TELEPHONE FAx