IN THE SUPREME COURT OF FLORIDA. Petitioner, v. CASE NO. SC04-32 RESPONDENT S BRIEF ON JURISDICTION

Transcription

1 IN THE SUPREME COURT OF FLORIDA SAFEHARBOR EMPLOYER SERVICES I, INC, and RSK CO., Petitioner, v. CASE NO. SC04-32 JUAN CINTO VELAZQUEZ, Respondent. / RESPONDENT S BRIEF ON JURISDICTION RICHARD A. KUPFER, P.A Corporate Way, Suite 106 West Palm Beach, FL (561) Counsel for Respondent

2 TABLE OF CONTENTS Page Table of Citations... ii - iv Jurisdictional Questions Presented: I. WHETHER THE DECISION OF THE FIRST DCA EXPRESSLY DECLARES VALID A STATE STATUTE? II. WHETHER THE DECISION OF THE FIRST DCA EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN MARTIN v. CARPENTER, INFRA, ON THE SAME QUESTION OF LAW? Statement of the Case and Facts... 1 Summary of Argument Argument I II Conclusion Certificate of Service Certificate of Compliance Appendix... Attached i

3 TABLE OF CITATIONS Cases Page Cenvill Devl p.corp. V. Candelo, 478 So2d 1168 (Fla. 1 st DCA 1985)... 5 English v. General Electric Co., 110 S. Ct (1990)... 7 Gene s Harvesting v. Rodriguez, 421 So2d 701 (Fla. 1 st DCA1982)... 5 Hernandez v. Coopervision, Inc., 661 So2d 33 (Fla. 1 st DCA 1995)... 4 Hoffman Plastics Compounds, Inc. v. N.L.R.B., 122 S. Ct (2002) Higgins v. Trigil Repair, Inc., 436 So2d 222 (Fla. 1 st DCA 1983) Martin v. Carpenter, 132 So2d 400 (Fla. 1961)... 9, 10 Medtronic Inc. v. Lohr, 116 S. Ct (1996)... 7 Ron Burton, Inc. v. Villwock, ii

4 477 So2d 596 (Fla. 4 th DCA 1985)... 8 TABLE OF CITATIONS - (cont.) Other Authorities: 8 USC , 8 7 USC Fla. Const. Art. V, 3(b)(1) Fla. Const. Art. V, 3(b)(3) (15(a), Fla. Stat. (2003) (4)(a), Fla. Stat. (2003) (5), Fla. Stat. (2001) (4)(b)(9), Fla. Stat. (2003) (7), Fla. Stat. (2003).... A. Larson & L. Larson, Larson s Workers Compensation Law (1999).... iii

5 JURISDICTIONAL QUESTIONS PRESENTED I. WHETHER THE DECISION OF THE FIRST DCA EXPRESSLY DECLARES VALID A STATE STATUTE? II. WHETHER THE DECISION OF THE FIRST DCA EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN MARTIN v. CARPENTER, INFRA, ON THE SAME QUESTION OF LAW? iv

6 STATEMENT OF THE CASE AND FACTS The JCC noted that the Claimant is a very simple agricultural migrant laborer. (R. 71) He obtained his social security card for $60 at an office in North Carolina. (R.15) His former employer in North Carolina helped him get the card. (R. 324) The Claimant testified he did not know if it was a government office or whether the card was legal. (R. 15, 324, 346) Claimant thought at the time it was legal (R. 324) and the new employer s investigation of the social security number when Claimant was hired did not reveal anything unusual. (R ) Neither the JCC nor the First DCA made any finding that fraud had been committed by the Claimant or relied on by the E/C. On February 5, 2002, the Claimant was involved in a motor vehicle accident within the course and scope of his employment. (R. 60) Eight of the Claimant s coworkers were also injured in the same accident. (R ) All of the Claimant s coworkers were accepted as compensable. (R. 23) SUMMARY OF ARGUMENT I. Just because a court rejects a defendant s federal preemption argument does not, by itself, translate into an order that expressly declares valid a state statute so as to create supreme court jurisdiction. Otherwise, every case in which federal 1

7 preemption is raised by either party, regardless of how it is decided by the district court, would impact this court s jurisdiction. Even if there was discretionary jurisdiction, there is no compelling reason to exercise it over an issue that has created no conflict in Florida or any other state in the country and which has not been certified to this court by the district court. II. The First DCA below made no mention about the Claimant committing fraud or misrepresentation, or any reliance by the Employer, nor did the JCC in the underlying order. An express and direct conflict must come from within the four corners of the district court s opinion, not from one party s extrapolation of inferences it considers to be supported by evidence. There is also no causal relationship between the alleged fraud and the injury suffered by the Claimant, as required by the Martin v. Carpenter line of cases. ARGUMENT I. WHETHER THE DECISION OF THE FIRST DCA EXPRESSLY DECLARES VALID A STATE STATUTE? This court would have discretionary jurisdiction if the First District had expressly declared valid a state statute, but that is not what occurred. The First 2

8 DCA s opinion concludes: The Florida legislature s right to enact worker s compensation benefits for illegal aliens is not preempted by federal action. That is not the same as expressly declaring the validity of a state statute. If federal action did preempt, the state statute would not be invalid, it would be preempted. The terms are not synonymous. A preempting federal law does not render the state law invalid. The state law would yield to the priority of a preempting federal law. The issue is not validity but priority. Is a Florida statute invalid if it has to yield to the law of another state on a choice of law issue? No. If federal law preempts a common-law tort action, does that make the common-law tort action invalid? No, just preempted. If the E/C s jurisdictional argument was correct, this court s jurisdiction would be implicated in every case that either party raises the issue of preemption, regardless of how it is ruled upon by the district courts. According to the E/C s argument, if a state statute is held by a district court to be preempted by federal law, the statute is therefore rendered invalid, which would give this court mandatory appellate jurisdiction pursuant to Florida Constitution Art. V, section 3(b)(1). If the district court holds that state action is not preempted by federal law, then that is expressly declaring a state statute valid which gives this court discretionary jurisdiction under Art. V, section 3(b)(3). That is not what was intended by the language of the Florida 3

9 Constitution. The E/C does not cite any authority to support its position that preemption should be treated the same as a constitutional attack on a statute or a challenge to the manner of its enactment that might render the statute invalid, as that word is traditionally understood. Federal preemption has been held to be a question going to the subject matter jurisdiction of the court, rather than the validity of a statute. See Hernandez v. Coopervision, Inc., 661 So2d 33 (Fla. 1 st DCA 1995). Federal preemption issues are common in civil litigation, as well as workers compensation cases. Sometimes they raise issues of great public importance and presumably would be certified to this court, as they have been in the past. Sometimes they will arrive to this court due to a conflict between or among district courts, as they have in the past. The E/C has failed to cite any case in which this court exercised jurisdiction to review a preemption issue when there was not a certified question or an inter-district conflict, or some other basis that supported this court s exercise of jurisdiction. Once this court holds that every district court opinion addressing the issue of preemption involves the validity of a state statute, it is going to be a slippery jurisdictional slope. Even if there was discretionary jurisdiction in this case, there is no compelling reason to exercise it over an issue on which there is no conflict in Florida or any other jurisdiction. While it is not the intent of this brief to argue the merits at this stage in any 4

10 detail, a brief summary is in order. Florida law unquestionably provides workers compensation benefits to the Claimant in this case. Chapter 440 includes in the definition of employee... any person engaged in any employment under any...contract of hire...whether lawfully or unlawfully employed, including...aliens and minors. See (15)(a), Florida Statutes. (2003). Florida appellate court opinions also acknowledge that undocumented aliens are not (for that reason alone) excluded from coverage under Florida s Workers Compensation Act. See Cenvill Devl p Corp. v. Candelo, 478 So2d 1168 (Fla. 1 st DCA 1985); Gene s Harvesting v. Rodriguez, 421 So2d 701 (Fla. 1 st DCA 1982). There is no conflict in Florida on this point. However, the E/C argues that these cases are no longer valid because the United States Supreme Court has spoken to the issue in Hoffman Plastic Compounds, Inc. v. Nat l Labor Relations Board, 122 S.Ct (2002). This is not correct. The Hoffman case does not deal at all with federalstate preemption, nor with workers compensation benefits. Rather, it deals exclusively with the interaction between two federal agencies. Hoffman deals with a provision of the Immigration Reform and Control Act ( IRCA ) 8 USC 1324, which was at odds with remedies afforded to undocumented aliens in the form of backpay for being improperly terminated under the National Labor Relations Act. The Supreme 5

11 Court held that federal remedies under the N.L.R.A. must coincide with the concurrent policy of congress under federal immigration laws. The Supreme Court also noted that N.L.R.A. remedies must also harmonize with federal bankruptcy law and the Federal Interstate Commerce Act. Id. at The Hoffman court noted that for one federal agency to implicate federal statutes or policies administered by other federal agencies [is] a most delicate area. Id. at Hoffman had nothing to do with benefits awarded to an injured worker after an industrial accident under state law designed to implement state police power and social policy. Hoffman says nothing about giving the opinion an expansive interpretation to cover all state entitlement legislation for employment-related benefits, as the E/C now urges to this court. The immigration statutes discussed in Hoffman also contain no such explicit preemptive language concerning state law. Not only was the Hoffman decision limited to its own facts, but even in that narrow capacity it was a 5 to 4 decision. Part of the reasoning discussed by the Hoffman court focused on the interrelationship between regulations of multiple federal agencies. Back pay entitlement under the N.L.R.A could be a magnet to encourage illegal alien workers to violate the immigration laws in order to earn wages in the United States. But the same does not hold true for workers compensation benefits which require an industrial accident to 6

12 cause a demonstrable injury. What would be the siren call for that? Come to America and get injured? There is not a single court in the state or the country that has yet found it to be an intolerable obstacle to federal immigration policy for the states to make their own policy decisions regarding workers compensation benefits for undocumented aliens. Likewise for minors or other workers who may not be legally employed but who are just as injured nevertheless while working for a local employer. An alien workers labor helps the employer pay for workers compensation insurance, regardless of whether the alien is documented or undocumented. The Florida legislature has actually protected Florida employers by including undocumented aliens under the group of covered employees entitled to workers compensation benefits. Without that coverage undocumented aliens would be able to sue the employer in tort for its negligence which contributed to the accident, and the employer would have no tort immunity. The position advanced by the E/C here may help this particular employer on this particular claim, but it could be devastating to other employers in other cases. How does it promote federal immigration policy to take tort immunity away from employers of migrant workers? The Supreme Court in Hoffman never entertained such a scenario. A strong presumption against federal preemption of traditional state police powers is indulged by the courts. Medtronic Inc. v. Lohr, 116 S. Ct. 2240, 2250 (1996); English v. General Electric Co., 110 S. Ct. 7

13 2270 (1990). The E/C also argues that the First DCA below is in conflict with Ron Burton, Inc. v. Villwock, 477 So2d 596 (Fla. 4 th DCA 1985). The court in Villwock considered a completely different preemption issue. The issue in Villwock was whether the Federal Labor Contractor Registration Act, 7 USC , preempted Florida s Workers Compensation Act. The Fourth DCA in Villwock held that the federal act did not preempt the Florida legislature s jurisdiction to provide benefits to alien agricultural workers. Villwock had nothing to do with the Federal Immigration Reform and Control Act (IRCA), 8 USC 1324, nor did it have anything to do with the legal vs. illegal status of an alien injured on the job in Florida, and it found there was no preemption, just as the First DCA found in this case. There is no semblance of any express and direct conflict between the present case and Villwock. II. WHETHER THE DECISION OF THE FIRST DCA EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN MARTIN v. CARPENTER, INFRA, ON THE SAME QUESTION OF LAW? The E/C argues that, by affirming an award of benefits to an employee who makes a material misrepresentation in the contract for hire, relied on by the employer 8

14 to its detriment, the decision of the district court expressly and directly conflicts with...martin v. Carpenter 132 So2d 400 (Fla. 1961). That argument, first of all, goes outside the four corners of the First DCA s opinion which discusses nothing about whether the Claimant committed fraud or misrepresentation, or whether the employer detrimentally relied on it. The Claimant testified he bought a social security card in an office in North Carolina with the help of his employer, and he did not know whether it was a government office or whether the card was legal. The JCC noted that the Claimant is a very simple agricultural migrant laborer. Neither the JCC nor the First DCA addressed the subject of fraud or detrimental reliance. An express and direct conflict must come from within the four corners of the district court s opinion, not from an argument that was never addressed by the court. The E/C also cites a new Florida statute that did not exist at the time of trial in this case and therefore was never raised as a defense at trial. The E/C cite sections (4)(b)(9) and (4)(a), Florida Statutes (2003). Section (4)(b)(9) makes it unlawful for any person to knowingly make a false statement relating to their identity in order to obtain employment. Section (4)(a) then goes on to preclude workers compensation benefits if any judge of compensation claims...determines that the employee has knowingly or intentionally engaged in any of the acts described in section In the present case, no such finding has been made by the JCC 9

15 nor by the First DCA. The JCC s order is an abbreviated order, two pages long, which makes no findings regarding the E/C s assertion of fraud or reasonable reliance. (R ) For another reason also, Martin v. Carpenter, supra, would not apply to this case. In Martin v. Carpenter this court was very clear that false statements do not preclude the employee from receiving workers compensation benefits unless there is a causal relationship between the false statement and the injury. See also Higgins v. Trigil Repair, Inc., 436 So2d 22 (Fla. 1 st DCA 1983). There is obviously no causal relationship here between the Claimant s residency status and the physical injuries he suffered. Therefore, there is no conflict with Martin v. Carpenter, supra. CONCLUSION For all the foregoing reasons, this court should decline to exercise discretionary review. Moreover, this court should grant the Respondent s separately filed motion for appellate attorney s fees pursuant to section (5), Florida Statutes (2001). Respectfully submitted, Richard A. Kupfer, P.A Corporate Way Suite 106 West Palm Beach, FL (561) Counsel for Respondent 10

16 By: Richard A. Kupfer Fla. Bar No CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that a true and correct copy of the foregoing document has been furnished by U.S. Mail this 17th day of February 2004 to: H. George Kagan, Esq., Miller, Kagan, Rodriguez & Silver, P.A., 250 Australian Avenue, Suite 1600, West Palm Beach, FL 33401, counsel for Petitioners; David A. Lamont, Esq., The Lamont Law Group, P.A., P.O. Box 6026, Clearwater, FL 33758, counsel for Petitioners. RICHARD A. KUPFER, P.A Corporate Way; Suite 106 West Palm Beach, FL (561) Counsel for Respondent By: Richard A. Kupfer Florida Bar No CERTIFICATE OF COMPLIANCE The undersigned counsel for Respondent certifies that the size and style of type used in this document is 14 Point Times Roman. RICHARD A. KUPFER, P.A Corporate Way, Suite 106 West Palm Beach, FL (561) Counsel for Respondent 11

17 By: Richard A. Kupfer Florida Bar No IN THE SUPREME COURT OF FLORIDA SAFEHARBOR EMPLOYER SERVICES I, INC, and RSK CO., Petitioner, v. CASE NO. SC04-32 JUAN CINTO VELAZQUEZ, Respondent. / APPENDIX TO PETITIONER S INITIAL BRIEF ON THE MERITS INDEX TO APPENDIX First DCA opinion in Safeharbor Employer Services v. Velazquez (October 13, 2003)...A