SUPREME COURT OF FLORIDA Case No. SC07-434 ON PETITION TO REVIEW DECISION FROM THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT, STATE OF FLORIDA 4 TH DCA APPEAL NO. 4D05-2531 ELIZABETH A. OSTUNI, as Personal Representative of the Estate of ANTHONY JOHN OSTUNI, deceased Petitioner, vs. MEINEKE DISCOUNT MUFFLER SHOPS, INC., WILLIAM R. UFER, SR., WILLIAM R. UFER, JR., REX-DOUGLAS CORPORATION, GORDON CADE, CAROLE COLARUSSO d/b/a TRANSMISSION, BK CAPITOL GROUP, INC. and STATE AUTO INSURANCE COMPANIES, Respondents. FINAL APPEAL FROM THE CIRCUIT COURT FOR THE 17 TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA L.T. Case No. 00-3296 AMENDED JURISDICTIONAL ANSWER BRIEF OF STATE AUTO INSURANCE COMPANIES PETERSON BERNARD James G. Salerno, Esq. Florida Bar #221007 Melissa D. Strickland, Esq. Florida Bar #796581 Attorneys for Respondent State Auto 707 Southeast Third Avenue Suite 500, Blackstone Building Fort Lauderdale, Florida 33316 (954) 763-3200 Phone
TABLE OF CONTENTS Page: TABLE OF AUTHORITIES........................ ii INTRODUCTION................................ 1 STATEMENT OF THE CASE AND FACTS........... 1 SUMMARY OF THE ARGUMENT.................. 3 ARGUMENT.................................... 4 I. THERE IS NO CONFLICT BETWEEN THE FOURTH DISTRICT S DECISION IN THIS CASE AND PRIOR DECISIONS OF THE FIRST, SECOND AND FIFTH DISTRICTS OR THIS COURT. II. PETITIONER DOES NOT ALLEGE CONFLICT WITH THE FOURTH DISTRICT S AFFIRMATION OF THE TRIAL COURT S GRANTING OF SUMMARY JUDGMENT IN FAVOR OF STATE AUTOMOBILE INSURANCE COMPANIES IN ITS DECLARATORY JUDGMENT ACTION. CONCLUSION................................... 10 CERTIFICATE OF SERVICE....................... 11 CERTIFICATE OF COMPLIANCE.................. 12 i
TABLE OF AUTHORITIES Cases: Deen v. Quantam Resources, Inc., 750 So. 2d 616 (Fla. 1999)............................ 4, 6 Eller v. Shova, 630 So. 2d 537 (Fla. 1993)............................ 6 Gulfstream Land & Development Corp. v. Wilkerson, 420 So. 2d 587 (Fla. 1982)............................ 6-7 Hardee v. State, 534 So. 2d 706 (Fla. 1988)............................ 4 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)........................... 4 Jones v. Florida Power Corp., 72 So. 2d 285 (Fla. 1954)............................. 4, 6-7 Madaffer v. Managed Logistics Systems, Inc., 601 So. 2d 1328 (Fla. 2nd DCA 1992)................... 7 Mobil Oil Corp. v. Brandsford, 648 So. 2d 119, 121 (Fla. 1995)........................ 8 Ostuni v. Meineke Discount Muffler Shops, Inc., 948 So. 2d 848 (Fla. 4th DCA 2007).................... 1 Streeter v. Sullivan, 509 So. 2d 268 (Fla. 1987)............................ 6 Vause v. Bay Medical Center, 687 So. 2d 258 (Fla. 1st DCA 1997).................... 7 Weber v. Dobbins, 616 So. 2d 956 (Fla. 1993)........................... 7 ii
Woodson v. Ivey, 917 So. 2d 993 (Fla. 5th DCA 2005)................... 7 Statutes and Rules: Fla. Const. Art. V, 3(b)(3)............................... 4 Fla. Stat. 440.02....................................... 6-7 Fla. Stat. 440.04....................................... 6 Fla. Stat. 440.10....................................... 6 Fla. Stat. 440.11....................................... 2-8, 10 Fla.R.App.P.9.030(a)(2)(A)(iv)............................ 4 Other Citations: Florida Appellate Practice (2007 ed.) Padovano, Philip J., 3.10, p. 68...................... 4 iii
INTRODUCTION This is an answer brief by the Respondent, STATE AUTOMOBILE INSURANCE COMPANIES (hereinafter STATE AUTO ), regarding an appeal filed by the Plaintiff, ELIZABETH OSTUNI, as personal representative of Anthony John Ostuni, deceased. Ms. Ostuni s appeal concerns a decision by the Fourth District Court of Appeal as rendered on January 31, 2007, wherein the Fourth District Court of Appeal affirmed three trial court orders. 1 STATEMENT OF THE CASE AND FACTS This is an action for wrongful death wherein Petitioner s spouse was shot and killed during the course of a robbery at his place of employment (R. 484-85, 488 2, 10, 24). Petitioner sought and obtained workers compensation benefits (R. 3452 54, 3457, 3475, 3494 97), then filed a suit for wrongful death based on the same incident. (R. 1-14). As the insurance carrier for multiple defendants (R. 1653 11; 1656 18), STATE AUTO filed a declaratory judgment action to determine coverage for Petitioner s claims. (R. 1541 79); it was consolidated with the wrongful death action on February 12, 2001. (R. 1725). On April 15, 2005, the trial court granted summary judgment to UFER SR. and REX DOUGLAS. (R. 2129 32), finding them entitled to immunity from the 1
Plaintiff s wrongful death suit by virtue of the exclusivity provisions of section 440.11(1), Florida Statutes. At that time, the trial court also grated Final Summary Judgment to STATE AUTO in its declaratory judgment action. 2 Ms. Ostuni untimely appealed these orders to the Fourth District (R. 2177 79), which did not disturb the trial court s findings. Instead, it affirm[ed] in all respects the actions of the trial court, holding that the non-insurer appellants [sic] were other person[s] who acted in a managerial or policymaking capacity within the meaning of section 440.11(1), Florida Statutes (1998). 3 It also held: [t]o the extent that some of the causes of action rely on the vicarious liability of those acting as agents with workers compensation immunity, then no cause of action exists under Mobil Oil Corp. v. Brandsford, 648 So. 2d 119, 121 (Fla. 1995), which holds that if an apparent agent cannot be held liable, neither can the principal, because there is nothing to impute. Ostuni relies upon Gulfstream Land & Development Corp. v. Wilkerson, 420 So. 2d 587 (Fla. 1982), but we find that case to be inapplicable because it predates the 1988 revision of section 440.11(1). 4 The Plaintiff s February 16, 2007 Motion for Rehearing, Clarification and Certification 5, was denied by the Fourth District. This appeal followed. 1 Ostuni v. Meineke Discount Muffler Shops, Inc., 948 So. 2d 848 (Fla. 4th DCA 2007). A copy of the January 31, 2007 order is included as A-1 in Respondent s Appendix, attached hereto. 2 See, order dated September 12, 2005, omitted from the record on appeal. 3 See, A-1, 3. The typographical error of appellants was corrected as per the court to properly read non-insurer appellees in a letter from the court dated February 13, 2007. 4 See, Id., pg. 2. 5 See, Plaintiff s Motion for Rehearing, Clarification and Certification, which was not included in the record on appeal. 2
SUMMARY OF THE ARGUMENT In arguing a conflict, Petitioner appears to misunderstand the decision of the Fourth District, the decisions of the other District Courts of Appeal and this Court, and the effect of the 1988 amendments to 440.11(1). In holding that the defendants were other persons who acted in a managerial of policy making capacity entitled to immunity under 440.11(1), the Fourth District does not expressly or directly conflict with previous decisions regarding the same point of law, nor does it does fail to require that immunity flow from the duty to provide coverage. Instead, pursuant to the 1988 amendments, the Fourth District merely applied immunity to those who acted in a managerial or policymaking capacity. Further, it does not appear from the Petitioner s Jurisdictional Brief that she is disputing the Fourth District s affirmation of summary judgment for STATE AUTO in its declaratory judgment action, nor does she claim a basis for obtaining discretionary conflict jurisdiction of this Court on that issue. As such, it is respectfully asserted that this Court lacks any basis for discretionary conflict jurisdiction to review the issue of STATE AUTO S obtaining summary judgment, even in the event it determines it does have discretionary conflict jurisdiction to review the issues appealed by Petitioner. 3
ARGUMENT I. THERE IS NO CONFLICT BETWEEN THE FOURTH DISTRICT S DECISION IN THIS CASE AND PRIOR DECISIONS OF THE FIRST, SECOND AND FIFTH DISTRICTS OR THIS COURT. In order to obtain jurisdiction with this Court, Petitioner argues the existence of a conflict between the January 31, 2007 decision of the Fourth District and prior decisions of the First, Second and Fifth Districts and this Court. In so doing, Petitioner impermissibly argues and examines the underlying record. 6 The law is clear that there can be no consideration of the underlying record, no secondguessing of the facts supporting the Fourth District s decision, nor use of extrinsic materials to clarify a purported conflict. See, Hardee v. State, 534 So. 2d 706 (Fla. 1988); Art. 5, 3(b)(3), Fla. Const. Jurisdiction based on conflict exists only where the decision being reviewed conflicts expressly and directly with a previous decision of this Court or another district court of appeal. See, Fla.R.App.P.9.030(a)(2)(A)(iv); Florida Appellate Practice (2007 ed.), Padovano, Philip J., 3.10, p. 68; Jenkins v. State, 385 So. 2d 1356 (Fla. 1980). In arguing a conflict, Petitioner also appears to misunderstand the Fourth District s decision, decisions of the other District Courts of Appeal and this Court, and the effect of the 1988 amendments to 440.11(1). First, Petitioner cites to Deen v. Quantam Resources, Inc., 750 So. 2d 616 (Fla. 1999) and Jones v. Florida 4
Power Corp., 72 So. 2d 285 (Fla. 1954) to argue that it is the liability to secure compensation which gives the employer immunity from suit.... 7, then accuses the Fourth District of erroneously holding this premise inapplicable because it predated the 1988 amendments to 440.11(1). In so arguing, Petitioner appears to misunderstand that this principle was expanded by the 1988 amendments. The amendments expanded the realm of immunity to include all persons and/or entities who in the course and scope of their duties act in a managerial or policymaking capacity, not just the employer who had an obligation to secure worker s compensation coverage. Thus, as long as the employer had an obligation to secure coverage, the immunity he enjoys extends to all those who fall within the terms of 440.11(1). Petitioner is therefore mistaken in asserting that the Fourth District failed to require that immunity flow from the duty to provide coverage. In determining that immunity extends to protect all those who acted in a managerial or policymaking capacity, the Fourth District did not abrogate this requirement, but merely applied the 1988 amendments to extended the scope of the immunity stemming from the duty to provide coverage. There is thus no conflict between the Fourth District s decision and those of the First, Second, and Fifth District Courts of Appeal and this Court. 6 See, Petitioner s Jurisdictional Brief, pp. 2-4. 7 See, Id., pg. 5 (emphasis in original). 5
Looking specifically at the cases cited by Petitioner, it becomes even clearer that there is no conflict, as the cases cited address different issues than those presented here. In Eller v. Shova, 630 So. 2d 537 (Fla. 1993), the court addressed the constitutionality of the 1988 amendments to 440 (not at all addressed in the Fourth District s decision here) and clarified that the 1988 amendments to 440.11 were a direct response to Streeter v. Sullivan, 509 So. 2d 268 (Fla. 1987). Streeter and the 1978 version 440.11 were thus superseded by the 1988 amendments. Deen v. Quantam Resources, Inc., 750 So. 2d 616 (Fla. 1999), Jones v. Florida Power Corp., 72 So. 2d 285 (Fla. 1954), and Gulfstream Land & Development Corp. v. Wilkerson, 420 So. 2d 587 (Fla. 1982), also address distinctly different issues than the one presented here. The issue in Deen was whether a self-insured public utility providing workers compensation insurance to an employee of a subcontractor was immune from liability under 440.11(4), as a carrier under to 440.02(3). Deen, 750 So. 2d at 621. In Jones, the real question [was] whether the Corporation is an employer within the meaning of the Workmen s Compensation Act... [i]f it is an employer, is it also a contractor, within the meaning of Section 440.10? Jones, 72 So. 2d at 287. In Gulfstream, the question was whether 440.04(2) operated to extend immunity to a parent corporation when the employee of a subsidiary is injured and both the parent and the subsidiary are insured by the same workers compensation policy. Gulfstream, 6
420 So. 2d at 590. The issue raised in the instant case is who is entitled to other person immunity under 440.11(1) (as per the 1988 amendments). As these cases do not consider this question (indeed, both Gulfstream and Jones predate the 1988 amendments), there can be no conflict. Nor is there conflict with Woodson v. Ivey, 917 So. 2d 993 (Fla. 5th DCA 2005), Madaffer v. Managed Logistics Systems, Inc., 601 So. 2d 1328 (Fla. 2nd DCA 1992), Vause v. Bay Medical Center, 687 So. 2d 258 (Fla. 1st DCA 1997), or Weber v. Dobbins, 616 So. 2d 956 (Fla. 1993). In her Brief, Petitioner concludes that other districts have required some relationship to the employer in order to invoke other person immunity under 440.11(1) 8, an argument apparently made to tie in to Petitioner s claim that the Fourth District expands other person immunity to include those unconnected to the employer in a managerial capacity. However, this argument is without merit, as the Fourth District s decision affirms immunity based on each party s connection to the... employer. 9 Further, it should be noted that this decision is actually consistent with Weber. In Weber, this Court rejected a similar attempt to limit the immunity provisions of 440.11 to the statutory definition of employee set forth in 440.02. Weber, 616 So. 2d at 959. There (as here), in reaching its decision the court looked to the words of the 1988 amendments and declined to reach an illogical result. 8 See, Petitioner s Jurisdictional Brief, pg. 7. 7
Finally, there is no conflict with Mobil Oil Corp. v. Bransford, 648 So. 2d 119 (Fla. 1995). In its decision, the Fourth District made the statement that to the extent that some of the [Petitioner s] causes of action rely on the vicarious liability of those acting through agents with workers compensation immunity, then no cause of action exists under Mobil Oil.... 10 The decision does not hold that a franchisor can never be held liable for its own negligence; despite Petitioner s assertions to the contrary, such sentiment is not found within the decision. In her various pleadings, which she cannot ignore, Petitioner has made false statements and claimed all sorts of agency/principal theories of liability. 11 If there is no liability for the agent due to immunity, how can there be any derivative liability? There is nothing to impute to the principal. 12 Because there is no conflict between the January 31, 2007 decision of the Fourth District and those cases cited by Petitioner from the First, Second, and Fifth District Courts of Appeal and this Court, it is respectfully asserted that this Court lacks discretionary conflict jurisdiction to review the Fourth District s decision. 9 See, A-1, pg. 2. 10 See, Id. 11 See, Id., pg. 1. 12 See, Id. and Fla. Stat. 440.11(1) (employer s liability shall be exclusive and in place of all other liability). 8
II. PETITIONER DOES NOT ALLEGE CONFLICT WITH THE FOURTH DISTRICT S AFFIRMATION OF THE TRIAL COURT S GRANTING OF SUMMARY JUDGMENT IN FAVOR OF STATE AUTOMOBILE INSURANCE COMPANIES IN ITS DECLARATORY JUDGMENT ACTION. It does not appear from the Petitioner s Jurisdictional Brief that she is disputing the Fourth District s affirmation of the trial court s granting summary judgment in favor of STATE AUTO in its declaratory judgment action. Nor does she claim a basis for obtaining discretionary conflict jurisdiction of this Court on that issue. Her appeal appears to be based solely on an alleged conflict between the Fourth District s affirmation of the trial court s granting summary judgment to the other defendants on the basis of worker s compensation immunity and decisions by the First, Second and Fifth District Courts of Appeal and this Court. 13 As such, it is respectfully asserted that this Court lacks any basis for discretionary conflict jurisdiction to review this issue, even in the event it determines it does have discretionary conflict jurisdiction to review the issues appealed by Petitioner. 13 See, Petitioner s Jurisdictional Brief, Summary of the Argument, pg. 4. 9
CONCLUSION First, despite Petitioner s arguments to the contrary, there is no conflict between the January 31, 2007 decision of the Fourth District Court of Appeal and prior decisions of the First, Second and Fifth District Courts of Appeal and this Court, which would confer discretionary conflict jurisdiction upon this Court. Petitioner s argument of conflict appears to arise from a misunderstanding of the Fourth District s opinion, the decisions of the other District Courts of Appeal and this Court, and the effect of the 1998 amendments to 440.11(1). Second, Petitioner does not appear to be disputing the Fourth District s affirmation of the trial court s granting of summary judgment in favor of STATE AUTO in its declaratory judgment action, nor does she claim a basis for obtaining discretionary conflict jurisdiction of this Court on that issue. Therefore, it is respectfully asserted that this Court lacks a basis for discretionary conflict jurisdiction to review this issue, even in the event it determines it does have discretionary conflict jurisdiction to review the issues appealed by Petitioner. 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Brief, together with all attachments and appendices thereto, have been served by U.S. mail upon the persons identified on the attached service list this 23rd day of May, 2007. PETERSON BERNARD Attorneys for Respondent State Auto 707 Southeast Third Avenue Suite 500, Blackstone Building Fort Lauderdale, Florida 33316 (954) 763-3200 Phone (954) 728-9019 Fax By: JAMES G. SALERNO Florida Bar #221007 11
CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Brief has been prepared using Times New Roman 14 point font pursuant to the requirements of Rule 9.210(a)(2), Fla.R.App.P., and an electronic copy has been submitted pursuant to Administrative Order AO04-84. PETERSON BERNARD Attorneys for Respondent State Auto 707 Southeast Third Avenue Suite 500, Blackstone Building Fort Lauderdale, Florida 33316 (954) 763-3200 Phone (954) 728-9019 Fax By: JAMES G. SALERNO Florida Bar #221007 12
SERVICE LIST Howard Sutter, Esq. Boyd & Sutter, P.A. Attorneys for Petitioner, Ostuni 6817 Southpoint Parkway, Suite 1801 Jacksonville, Florida 32216 904-470-0110 Phone 904-470-0116 - Fax Colleen Brannelly, Esq. Joseph M. Loughren, Esq. Loughren and Doyle, P.A. Attorneys for Plaintiff Ostuni 506 S.E. 8 th Street Fort Lauderdale, Florida 33316 954-525-6006 954-525-8012 Fax Hinda Klein, Esq. Conroy, Simberg, Ganon, P.A. Attorneys for Respondent, Meineke Attorneys for Appellee, Meineke 3440 Hollywood Boulevard Second Floor Hollywood, FL 33021 954-961-1400 Phone Edward Herndon, Esq. or Joe Zollner, Esq. Conroy Simberg & Ganon, P.A. Attorneys for Meineke 325 John Knox Road Atrium Building, Suite 105 Tallahasee, FL 32303 850-383-9103 13
Frank R. Brady, Esq. Jeanne C. Brady, Esq. Brady & Brady, P.A. Attorneys for Appellees, Ufer, Sr. and Rex Douglas (JBC) Attorneys for Respondents, Ufer, Sr. and Rex-Douglas (FRB) 370 W. Camino Gardens Blvd. Suite 336-337 Boca Raton, Florida 33432 954-525-6006 - Phone 954-525-8012 - Fax Steven Pesso, Esq. Attorney for William R. Ufer, Jr. 370 West Camino Gardens Blvd Suite 300 Boca Raton, Fl 33432 561-395-4046 561-395-4541 FAX Richard Gomez, Esq. Attorneys for Respondent, Meineke 4300 Biscayne Boulevard Suite 305 Miami, FL 33137-3255 305-825-5506 Fred Fulmer, Esq. Attorney for William Ufer, Sr., William Ufer, Jr., Gordon Cade and Rex-Douglas Corp. 2455 East Sunrise Blvd. Suite 1216 Fort Lauderdale, Florida 33304 954-763-1052 Sue - Press 4 954-462-3861 Fax 7260.27970 14
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