Filing # 21591912 Electronically Filed 12/15/2014 10:01:22 AM RECEIVED, 12/15/2014 10:03:42, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA EVA SANTAMARIA, Individually and for the benefit of VICTOR LIZARRAGA S minor children, VICTOR GAEL LIZARRAGA- SANTAMARIA and ZIMENA MIA LIZARRAGA-SANTAMARIA, v. Petitioner, RL HAINES CONSTRUCTION, LLC, Respondent. / Case No.: SC14-2188 RESPONDENT S AMENDED RESPONSE BRIEF ON JURISDICTION Attorneys for Respondent, R.L. HAINES CONSTRUCTION, LLC Dadeland Centre II, Suite 1400 9150 South Dadeland Boulevard Miami, Florida 33156 Telephone: (305) 350-5346 Facsimile: (305) 373-2294
TABLE OF CONTENTS Page TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii PREFACE... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 4 NONE OF THE FACTORS SET FORTH IN THE OPINION WARRANT CONFLICT JURISDICTION OR REVIEW BY THIS COURT... 4 CONCLUSION... 9 CERTIFICATE OF SERVICE...11 CERTIFICATE OF COMPLIANCE...12 - i -
TABLE OF AUTHORITIES Case No.: SC14-2188 Page Cases Aravena v. Miami-Dade County, 928 So.2d 1163 (Fla. 2006).... 9 Boston ex rel. Estate of Jackson v. Publix Supermarkets, Inc., 112 So.3d 654 (Fla. 4th DCA 2013)... 6 Castellanos v. Next Door Co., 124 So.3d 392 (Fla. 1st DCA 2013) (SC13-2082)...8, 9 Dept. of Health & Rehabilitative Services v. National Adoption Counseling Service, Inc., 498 So.2d 888 (Fla. 1986).... 9 Gorham v. Zachry Industrial, Inc., 105 So.2d 629 (Fla. 4th DCA 2013)...6, 8 Jenkins v. State, 385 So.2d 1356 (Fla. 1980)... 9 List Industries, Inc. v. Dalien, 107 So.3d 470 (Fla. 4th DCA 2013)... 6 St. Paul Title Ins. Corp. v. Davis, 392 So.2d 1304 (Fla. 1981)... 9 State ex rel. Jaytex Realty Company v. Green, 105 So.2d 818, 819 (Fla. 1st DCA 1958), cert discharged, 112 So.2d 571 (Fla. 1959)... 5 Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000)...4, 5 Vallejos v. Lan Cargo, S.A., 116 So.3d 545 (Fla. 3d DCA 2013)... 7 - ii -
Westphal v. City Of St. Petersburg, 122 So.3d 440 (Fla. 1st DCA 2013) (SC13-1930)... 8 Statutes Section 440.11(1)(b)(2), Florida Statutes (2010)... passim Section 440.34... 8 Workers' Compensation Law, chapter 440, Florida Statutes (2010)... 1 - iii -
PREFACE In this Response, Eva Santamaria, et al. will be referred to as Petitioner and Respondent R.L. Haines Construction Co., LLC., will be referred to as R.L. Haines. References to the Appendix will be as (A-vol. number, p. ). STATEMENT OF THE CASE AND FACTS R.L. Haines adopts in full the facts set forth in the Opinion, as follows: Victor Lizarraga ("the decedent") died from injuries he received when he was struck by a 2000-pound steel column while working at a construction site. Eva Santamaria, the decedent's wife, on behalf of herself and their two children (collectively "Appellees"), filed a wrongful death action against various defendants, including the general contractor, R.L. Haines Construction, LLC ("R.L. Haines"). R.L. Haines raised immunity pursuant to the Workers' Compensation Law, chapter 440, Florida Statutes (2010), as a defense. The trial court found that an exception to workers' compensation immunity applied and presented the case to the jury, which rendered verdicts in favor of Appellees. R.L. Haines appeals, contending that the trial court erred in holding that the exception to workers' compensation immunity applies in this case. We agree and reverse. We conclude that Appellees' cross-appeal on an evidentiary issue lacks merit and decline further discussion on this issue. R.L. Haines contracted to build a 200,000 square foot expansion of an existing warehouse. It subcontracted all of the steel work on the project to Metal Bilt, Inc. ("Metal Bilt"). At the time he was struck, the decedent was working as a foreman for Metal Bilt. Part of Metal Bilt's scope of work on the project was to erect steel columns to support the building. Each column stood - 1 -
(A-1, Opinion, p. 1-3). Case No.: SC14-2188 thirty-three feet high and weighed over 2000 pounds. The columns were attached to bolts anchored to a concrete base by an epoxy adhesive. Before Metal Bilt employees could install the columns, the epoxy adhesive had to cure for a certain amount of time, depending on the temperature of the base concrete. According to the epoxy installation instructions, loads were not to be applied until the cure time had passed. On January 13, 2010, Metal Bilt secured several anchor bolts to concrete slabs with epoxy adhesive. The epoxy installation instructions called for seventy-two hours of drying time. R.L. Haines nonetheless instructed Metal Bilt employees to begin setting the steel columns on January 15, 2010, after only forty-four hours of drying time. Metal Bilt erected four columns that morning. While the decedent was tightening a wire attached to one of the columns, the column fell on him, causing his death. Appellees sued R.L. Haines, arguing that the facts of this case fall within the intentional tort exception to workers' compensation immunity, as set forth in section 440.11(1)(b)(2), Florida Statutes (2010). At trial, Appellees asserted that R.L. Haines's decision to allow Metal Bilt employees to set the steel columns before the epoxy used to secure the anchor bolts had fully cured caused the decedent's death. They further alleged that R.L. Haines knew that the failure of the epoxy to fully cure could lead to the collapse of a column and the collapse of a column was virtually certain to injure or kill the employee on whom it fell. The jury awarded Appellees a total of $2.4 million. - 2 -
SUMMARY OF THE ARGUMENT Case No.: SC14-2188 Petitioner raises three points on appeal, none of which entitle it to the relief requested. First, Petitioner argues that the Opinion gives no evidentiary weight to the evidence of employer concealment as it relates to the issue of the likelihood of injury, in direct conflict with existing precedent. Second, Petitioner argues that the Opinion adds causation elements which are in direct conflict with the jury instructions promulgated by this Court. Finally, Petitioner argues that this case has significance and warrants review because other workers compensation immunity cases are before this Court, and the statute was recently declared unconstitutional by a Miami-Dade County trial judge. These arguments are without merit. The Opinion did not misapply or ignore precedent therefore creating conflict jurisdiction. It also did not add causation elements in conflict with the applicable jury instructions. The other cases pending in this Court and the finding that the workers compensation statute is unconstitutional by a circuit court judge are irrelevant. The court applied section 440.11(1)(b)(2) and determined that no exception to workers compensation immunity was created by the facts in this case. Conflict jurisdiction does not exist here, and the Petition should be denied. - 3 -
ARGUMENT NONE OF THE FACTORS SET FORTH IN THE OPINION WARRANT CONFLICT JURISDICTION OR REVIEW BY THIS COURT. Petitioner s Brief on Jurisdiction simply reargues issues that were fully briefed below, raised at oral argument and were carefully considered by the majority in reaching its Opinion. The majority did not overlook or misapply any points of law or fact. Accordingly, jurisdiction does not lie in this Court. RL Haines Conduct The Petitioner s claim that conflict jurisdiction exists because the Opinion fails to give any evidentiary weight to the substantial employer concealment. (Petitioner s Brief, p. 5). Therefore, [t]he Opinion conflicts with Turner and Bakerman that employer concealment is highly relevant to the likelihood of injury or death. (Petitioner s Brief, p. 5). Even assuming that cases which followed the substantial certainty standard such as Turner and Bakerman are applicable here, the Petitioner s statements are not supported by the Opinion. The Opinion did not overlook or misapply the conduct of R.L. Haines or its employees. It referenced R.L. Haines conduct on five separate occasions. (A-1, Opinion, p. 9-10; also fn.7 p. 10). The Opinion extensively examined R.L. Haines conduct and concluded that the conduct (the alleged concealment) and the occurrence of an injury were insufficient to satisfy the virtual certainty standard. - 4 -
(A-1, Opinion, p. 9-10). Petitioner s argument on this point is inaccurate and does not warrant conflict jurisdiction. The court s failure to relist each and every allegation of concealment made against R.L. Haines is irrelevant. It is essential that litigants recognize that a court s opinion will frequently address some aspects of a case while not mentioning others, but counsel should not from this fact draw the conclusion that the matters not discussed were not considered. State ex rel. Jaytex Realty Company v. Green, 105 So.2d 818, 819 (Fla. 1st DCA 1958), cert discharged, 112 So.2d 571 (Fla. 1959) (addressing a motion for rehearing). The Opinion also did not overlook or misapply the holding in Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000) or its progeny. The Opinion noted that as a result of Turner, the Legislature amended the exception language by enacting section 440.11(1)(b) in 2003, to, among other things, narrow the exception standard. Undeniably, the majority understood and considered what, if any, significance that Turner had upon the issues presented here. (A-1, Opinion, p. 4-5). Nothing else cited in Petitioner s Brief creates conflict jurisdiction in any manner. This case was fact intensive. The parties thoroughly briefed the facts, presented them at oral argument, and the court ruled. - 5 -
Causation The Opinion did not add elements to the cause of action below. (Petitioner s Brief, p. 6-7). The court analyzed this case in compliance with the applicable statute, section 440.11(1)(b)(2). The Opinion cited the applicable statute, recognized that the virtual certainly standard was an extraordinarily high standard, and noted [t]he standard set forth in section 440.11(1)(b)(2) requires events to be viewed retrospectively in order to determine whether the injury actually sustained was virtually certain to have occurred as a result of the employer s conduct. (A-1, Opinion, p. 9). The Opinion reasoned, [i]t would erode the statutory standard for overcoming workers compensation immunity to indulge an inference of virtual certainty from the fact that the employee was injured or killed. (A-1, Opinion, p. 9). The Opinion carefully considered the evidence in conjunction with the high standard required to prove an exception to workers compensation immunity, therefore, Petitioner s assertion that conflict jurisdiction is created is unfounded. The Opinion follows four opinions issued by Third and Fourth District Courts of Appeal, which is contrary to the claim that new causation elements were created here. (See List Industries, Inc. v. Dalien, 107 So.3d 470 (Fla. 4th DCA 2013); Gorham v. Zachry Industrial, Inc., 105 So.2d 629 (Fla. 4th DCA 2013); Boston ex rel. Estate of Jackson v. Publix Supermarkets, Inc., 112 So.3d 654 (Fla. - 6 -
4th DCA 2013); and Vallejos v. Lan Cargo, S.A., 116 So.3d 545 (Fla. 3d DCA 2013) (A-1, Opinion, p. 6-7). Petitioner s claim that the standard of foreseeability in the standard jury instructions was forsaken by the Opinion in favor of a standard that the events be viewed retrospectively is wrong. (Petitioner s Brief, p. 7). The Opinion demonstrates that the Court conducted a detailed analysis of the evidence presented at trial, recognized and discussed the employer s concealment of danger and noted that concealment was one of the elements required to prove an intentional tort. (A- 1, Opinion, passim). The majority relied upon a separate element of the statutorily defined exception to workers compensation immunity finding that Petitioner failed to prove an exception to workers compensation immunity because Petitioner failed to prove that the shortened cure time was virtually certain to cause injury or death. (A-1, Opinion, p. 8-9). The court followed section 440.11(1)(b)(2) to determine the standard it must utilize to assess whether an exception to workers compensation immunity was warranted by these unique facts. (A-1, Opinion, p. 4-5). It did not change the causation analysis. In applying section 440.11(1)(b)(2) to this case, the Opinion stated that the Legislature adopted an extremely strict exception which, we suspect, few employees can meet and reviewed the facts and circumstances of this case to find that the evidence was insufficient to satisfy the extraordinarily high standard. (A- - 7 -
1, Opinion, p. 6 citing Gorham v. Zachry Industrial, Inc., 105 So.3d 629, 634 (Fla. 4th DCA 2013). The majority used the correct analysis in its Opinion. Constitutionality of section 440.11, Florida Statutes and the Significance of this Case Finally, Petitioner implies that this Court should set aside years of legal precedent because 1) two unrelated matters are currently before this Court: Castellanos v. Next Door Co., 124 So.3d 392 (Fla. 1st DCA 2013) (SC13-2082) and Westphal v. City Of St. Petersburg, 122 So.3d 440 (Fla. 1st DCA 2013) (SC13-1930), and 2) a Miami-Dade County trial court judge declared the exclusive remedy provision of section 440.11 Florida Statutes unconstitutional. None of these matters have anything to do with issues raised in this case, and do not mandate that this Court hear this case. In Westphal, the First District held that a worker who is totally disabled as a result of a workplace accident and remains totally disabled by the end of his or her eligibility for temporary total disabilities benefits is deemed to be at maximum medical improvement by operation of law is therefore eligible to asset a claim for permanent and total disability benefits. Westphal, at 442. In Castellanos, the First District held that we have therefore considered claimant s arguments that section 440.34 should be deemed in violation of several constitutional provisions. Based on our precedent, however, we are bound to conclude that the statute is - 8 -
constitutional, both on its face and as applied. Castellanos, at 394 (citations omitted). In the Miami-Dade County matter, the circuit court judge declared the exclusive remedy provision of section 440.11 unconstitutional for failing to give employees a meaningful remedy. (See State of Florida v. Florida Workers Advocates et al., 3D14-2016 (currently pending in the Third District Court of Appeal). None of these cases impact the issues in this case, and do not mandate further review of this case by this Court. CONCLUSION This Court s conflict jurisdiction requires an express conflict. Jenkins v. State, 385 So.2d 1356 (Fla. 1980). The conflict between decisions must be express and direct, and must appear within the four corners of the majority decision. St. Paul Title Ins. Corp. v. Davis, 392 So.2d 1304 (Fla. 1981). It is not enough that the conflict occur in a dissent. Jenkins v. State, 385 So.2d 1356 (Fla. 1980). An implied conflict cannot serve as a basis for this Court s jurisdiction. Dept. of Health & Rehabilitative Services v. National Adoption Counseling Service, Inc., 498 So.2d 888 (Fla. 1986). Finally, an express and direct conflict is one in which it can be shown that two opinions cannot be reconciled. Aravena v. Miami-Dade County, 928 So.2d 1163 (Fla. 2006). The Petitioner s assertion of conflict jurisdiction fails. In this case, the court, like several other District Courts of Appeal, was called upon to determine if - 9 -
a set of facts fell within the intentional tort exception to workers' compensation immunity, as set forth in section 440.11(1)(b)(2), Florida Statutes (2010). The court found that it did not, and ruled in favor of the employer. Petitioner, as expected, is dissatisfied with the ruling. This does not create conflict jurisdiction, or make this a case of significance that warrants review by this Court. Therefore, for this and all of the reasons cited herein, the Petition should be denied. - 10 -
CERTIFICATE OF SERVICE Case No.: SC14-2188 WE HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via Electronic Mail on this 15 th day of December, 2014, to Brian P. Kirwin, Esquire and Douglas W. Ackerman, Esquire, bpk@kirwinnorris.com, dwa@kirwinnorris.com, beh@kirwinnorris.com, Kirwin Norris, P.A., Counsel for Petitioner, 15 W. Church Street, Suite 301, Orlando FL 32801. Attorneys for Respondent Dadeland Centre II, Suite 1400 9150 South Dadeland Boulevard Miami, Florida 33156 Telephone: (305) 350-5346 Facsimile: (305) 373-2294 E-mail: scott.cole@csklegal.com E-mail: rhonda.beesing@csklegal.com E-mail: charo.fagundez@csklegal.com E-mail: mary.rigau@csklegal.com By: /s/ Scott A. Cole SCOTT A. COLE FBN: 885630 RHONDA L. BEESING FBN: 0699721-11 -
CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.210(a), Fla. R. App. P., undersigned counsel hereby certifies that this brief is submitted in Times New Roman 14-point font. By: /s/ Scott A. Cole SCOTT A. COLE FBN: 885630 RHONDA L. BEESING FBN: 0699721-12 -