Florida/Georgia Personal Injury & Workers Compensation

...cluded individual the payment of workers' compensation and thus is not entitled to section 440.11 immunity from civil suit for work-related injuries suffered by the independent contractor. §§ 440.10, 440.11, Fla. Stat. (1983). However, pursuant to section 440.04, Florida Statutes (1983), [4] a person who is not otherwise considered an "employee" covered under chapter 440, but for whose benefit a contract of workers' compensation insurance has been secured, may be brought within the operation o...

...icy of insurance by the employer and the writing of such policy by the carrier. Allen v. Estate of Carman, 281 So.2d 317, 322 (Fla. 1973); Strickland v. Al Landers Dump Trucks, Inc., 170 So.2d at 446. As we have recognized, the purpose and effect of section 440.04 is to "empower" an employer having in its employ one who is excluded or exempted from the operation of the Law to voluntarily assume the obligations and privileges of the Workers' Compensation Law in relation to that individual and thereby insulate itself from common law liability pursuant to section 440.11....

...As noted in the majority's analysis in connection with question one, nowhere in chapter 440 is it clearly provided that a general contractor secures the payment of compensation for an independent contractor for purposes of the waiver of exemption provisions of section 440.04, thus limiting its liability under section 440.11, by deducting the cost of compensation premiums from the independent contractor's wages....

...n for summary judgment. [3] Under section 440.02(11)(d)1, Florida Statutes (1983), an independent contractor is excluded from the definition of an "employee" for whom an employer must secure the payment of compensation payable under chapter 440. [4] Section 440.04, Florida Statutes (1983), provides in pertinent part: 440.04 Waiver of exemption....

...The employer in Allen, who had fewer than three employees, was not required to have worker's compensation coverage under the then existing law. Allen, 281 So.2d at 320 (citing § 440.02(1)(b)(2), Fla. Stat. (1967)). However, under the "Waiver of Exemption" provision, section 440.04, Florida Statutes (1967), the employer could waive the exemption by obtaining coverage....

...ity. Allen, 281 So.2d at 322. Although under the 1967 version of the Act, participation in the worker's compensation plan was voluntary for the employer in Allen, the decision was not based on that fact. Rather, it was based on the plain language of section 440.04(3), Florida Statutes (1967), which expressly provided that effective waiver of exemption from chapter 440 is not dependant upon the posting of notice as provided in section 440.05. Allen 281 So.2d at 322. Section 440.04(3), which is currently found at section 440.04(2), Florida Statutes (1995), [4] provides: When any policy or contract of insurance specifically secures the benefits of this chapter to any person not included in the definition of "employee" or whose services are not included in the...

...unless specifically waived by the workmen's compensation statutes. Our review of the statutes, and the argument of counsel, reveals that waiver of liability to parent corporations is not explicit in the statutes. Gulfstream alleges, however, that subsection 440.04(2), Florida Statutes (1973), provides immunity under these facts....

...We find no basis for the premise that the legislature intended the vehicle of a joint workmen's compensation policy to limit third party tort liability. See Choate v. Landis *590 Tool Co., 486 F. Supp. 774 (E.D.Mich. 1980); Latham v. Technar, Inc., 390 F. Supp. 1031 (E.D.Tenn. 1974). Gulfstream argues that subsection 440.04(2), Florida Statutes (1973), [4] operates to extend the statutory immunity because of the parent/subsidiary relationship and the joint policy of insurance....

...s are not included within the definition of "employment," or (C) who is otherwise excluded from the operation of chapter 440. It further requires that the insured accept the policy and that the carrier agrees to write such. This Court has applied subsection 440.04(2) in several decisions....

...Strickland, a member of the association, was injured and filed for benefits under the policy. His application was denied on the grounds that his independent contractor status exempted him from the statute and that his injury was not work related. This Court reversed, holding that under the provisions of subsection 440.04(3) [5] the acceptance of the policy by the association constituted a waiver of the exclusion of Strickland from the act and brought him within its coverage....

...His injury was found to be work related because of his close working relationship with the association and because the work he was engaged in when injured was required by the association. In Allen v. Estate of Carman, 281 So.2d 317 (Fla.), conformed to 486 F.2d 490 (5th Cir.1973), an employer received the benefits of subsection 440.04(3) [6] by securing a policy of workmen's compensation insurance for his sole employee....

...[7] The underlying situation in all of these cases, however, has been a closely related employment arrangement. In Strickland the independent contractor was found to be directly associated with the trucking association. In Allen the deceased was the sole employee of the defendant. While subsection 440.04(2) is not limited to this relationship, we find that it does not extend to parent/subsidiary relationships under the facts at bar....

...fstream Land and Development Corp. obtained the policy specifically to secure the benefits of chapter 440 to Wilkerson. While the participants may enjoy the benefits of lower insurance rates, such does not automatically trigger the application of subsection 440.04(2)....

...Because there is no provision like § 440.10 relating to the parent/subsidiary relationship, that relationship is not analogous to the contractor/subcontractor relationship covered by § 440.10. [3] See 2A A. Larson, The Law of Workmen's Compensation § 72.40 (1982). [4] § 440.04(2) provides: (2) When any policy or contract of insurance specifically secures the benefits of this chapter to any person not included in the definition of "employee" or whose services are not included in the definition of "employment" or w...

...d and the writing of same by the carrier shall constitute a waiver of such exclusion or exemption and an acceptance of the provisions of this chapter with respect to such person, notwithstanding the provision of § 440.05 with respect to notice. [5] § 440.04(3) was recodified as § 440.04(2) in 1970....

..."The plaintiff moved for partial summary judgment, claiming that the Florida Workmen's Compensation Law was inapplicable because Carman did not have a minimum of three employees and had posted no notice of an intention to cover an excluded employee as required by 15 F.S.A. § 440.04(2)......

...verage of those employees who were neither pilot nor crew. "The defendants and intervenor also filed a motion for summary judgment, asserting that the exclusive remedy of workmen's compensation barred the suit *320 under 15 F.S.A. § 440.11 and that § 440.04(3) ... dispensed with the requirement that an employer post notice that he had waived his exemption not to come within the Workmen's Compensation Law.[11] "... "[11] There was no proof that the § 440.04(2) notice had been posted....

...covers this point expressly by defining the term "employment" for purposes of the Act to include, "All private employments in which three or more employees are employed by the same employer". *321 However, by taking either of the steps contemplated by Fla. Stat. § 440.04, F.S.A., an otherwise exempt employer may elect to waive his exemption and place himself within the purview of the Act. At the time of the accident which is the subject of this suit (December 28, 1967), Fla. Stat. § 440.04, F.S.A., styled "Waiver of Exemption", contained the following provisions: [2] "440.04 Waiver of exemption....

...shall post and keep posted in a conspicuous place or places in and about his place or places of business typewritten or printed notices to such effect in accordance with a form to be prescribed by the commission. He shall file a duplicate of such notice with the commission." In our judgment, the plain meaning of Fla. Stat. § 440.04(2), F.S.A., permits an otherwise exempt employer to waive his exemption and bring himself within protection of the Act to the same extent as if he had not been initially exempt....

...been secured, is subject to the provisions of the Chapter by virtue of the acceptance of the policy by his employer and the writing of the same by the compensation carrier. We think there can be no question that the purpose and effect of Fla. Stat. § 440.04, F.S.A., is to empower an exempt employer to voluntarily assume the obligations and privileges of the Workmen's Compensation Act and thereby insulate himself from common law liability pursuant to Fla....

...1965), claimant was an independent contractor and therefore normally excluded from the operation of the Workmen's Compensation Act by Fla. Stat. § 440.02(2)(c)(1), F.S.A. However, the employer had voluntarily issued a workmen's compensation insurance policy covering claimant. We held: "Under the provisions of Section 440.04(3), F.S.A., the acceptance of the policy by the respondent and the writing of it by the carrier constitute a waiver of the exclusion of claimant from the Act and operate to bring the claimant under its coverage." Accordingly, it is our...

...workmen's compensation insurance coverage for his employee, waived the statutory exclusion from the coverage of the Act otherwise available to him. We answer Question 1(a) in the affirmative. Question 1(b) is also answered affirmatively. Fla. Stat. § 440.04(3), F.S.A., supra, (now Fla. Stat. § 440.04[2] F.S.A.) provides that the acceptance of a policy of workmen's compensation insurance by the employer, covering any person whose services are not included in the definition of "employment", and the writing of the same by the carrier, shal...

...[2] Until September 1, 1970, the Florida Workmen's Compensation Act was an elective remedy. Pursuant to Fla. Stat. § 440.03, F.S.A., which was repealed by Chapter 70-148, Laws of Florida, both employers and employees were empowered to waive coverage under the Act. For that reason, Fla. Stat. §§ 440.04 and 440.05 F.S.A., then in force included provisions relative to nonacceptance of the Act (440.04[1]) and notice of nonacceptance (440.05[2])....

...ively indicate his desire for exemption, which he failed to do in this instance. Accordingly, we limit our discussion to the employer's waiver of exemption resulting from the purchase of a workmen's compensation insurance policy. In 1970, Fla. Stat. § 440.04, F.S.A., was amended to conform to the new requirement that coverage be mandatory rather than elective. That section now provides: "440.04 Waiver of exemption....

...uch exclusion or exemption and an acceptance of the provisions of this chapter with respect to such person, notwithstanding the provision of § 440.05 with respect to notice." It will be noted that with regard to waiver of exemption by the employer, § 440.04 was not substantially changed in 1970....

...§ 440.05, F.S.A., was amended in 1970 (see footnote 1) to eliminate the right of the employee to voluntarily exempt himself from the operation of the Act. The amended section provides: "440.05 Notice of waiver of exemption. — "Every employer who waives exemption or exclusion pursuant to section 440.04 shall post and keep posted in a conspicuous place or places in and about his place or places of business typewritten or printed notices to such effect, in accordance with a form prescribed by the division....

...and course of his employment, the trial court could have determined as a matter of law that appellees were entitled to summary judgment because appellees had secured a workers' compensation insurance policy which covered Lowry. They argue that under section 440.04(2), Florida Statutes (1991), the acceptance of a workers' compensation policy of insurance by the employer and the writing of it by a carrier constitute a waiver of the exclusion of an independent contractor from the Workers' Compensation Act and operates to bring the independent contractor under its coverage....

...Therefore, appellees argue that it is not material whether Lowry was an independent contractor or whether he was injured in the course and scope of employment since they exercised their unilateral right to acquire workers' compensation coverage for an independent contractor under section 440.04(2)....

...As a result, the party hiring such an independent contractor is not required to obtain workers' compensation coverage for the independent contractor and is not entitled to the immunity from civil suit for work-related injuries suffered by the independent contractor. § 440.11, Fla. Stat. (1991). Under section 440.04, however, a party hiring a person who is excluded from the definition of "employee" under the act may elect to waive such exclusion and accept the provisions of Chapter 440 by giving notice of such election to the Division of Workers'...

...ensation, as provided in section 440.05, or by obtaining a policy of insurance securing the benefits of Chapter 440 to such person. Allen v. Estate of Carman, 281 So.2d 317, 322-23 (Fla. 1973). Although appellees contend that they have complied with section 440.04 by purchasing a policy or contract of insurance securing the benefits of Chapter 440 with respect to Lowry, there is no evidence in the record of either an insurance policy containing an affirmative election by appellees and their carr...

...cope and course of his employment, or a mailed notice of such election to the Division of Workers' Compensation pursuant to section 440.05. Accordingly, there is no factual basis in the record on which appellees can establish a basis for reliance on section 440.04(2) to sustain the summary judgment....

...ccident. Thunderbird and Aetna deny Sothern's allegations and affirmatively allege that the exclusive remedy for Sothern's injuries was provided by the Florida Workmen's Compensation Act because compensation insurance had been provided for her under Section 440.04(2), Florida Statutes....

...Thunderbird and Aetna admit that Sothern is an independent contractor, thus, the issue before us is limited to whether her exclusive remedy is provided by Chapter 440, Florida Statutes. An independent contractor is exempt from the provisions of Chapter 440. Section 440.02(2)(d)1, Florida Statutes (1973). Section 440.04(2), Florida Statutes (1973), permits an employer to waive the exemption, however, and provide workmen's compensation insurance for an independent contractor....

...e. The issues were whether Sothern was an independent contractor or employee; whether the contract required Thunderbird to provide workmen's compensation coverage for Sothern; whether Thunderbird procured workmen's compensation coverage; and whether Section 440.04(2) was unconstitutional because it allowed an employer and carrier to unilaterally waive the common law right of action of an independent contractor against the employer without notice....

...rage *423 weekly wage (AWW). We agree and reverse. The claimant is an independent contractor who runs a logging crew and sells timber to the appellant. Prior to the accident he elected to secure workers' compensation coverage for himself pursuant to § 440.04(2), Fla....

...ce, estoppel, or consent, since jurisdiction is established solely by general law"); RHPC, Inc. v. Department of Health and Rehabilitative Services, 509 So.2d 1267 (Fla. 1st DCA 1987) ("estoppel does not operate to confer authority or power"). While section 440.04, Florida Statutes (1991), does allow for waiver of chapter 440 exclusions and exemptions when coverage specifically has been secured for work contemplated by the act, section 440.09(2) works to expressly exclude coverage when the nature of the work is covered by the LHWCA....

...r. Ordinarily this would exclude claimant from the provisions of the Workmen's Compensation Act. But in this case, the respondent voluntarily caused a policy of workmen's compensation insurance to be issued covering claimant. Under the provisions of Section 440.04(3), F.S.A., the acceptance of the policy by the respondent and the writing of it by the carrier constitute a waiver of the exclusion of claimant from the Act and operate to bring the claimant under its coverage....

...o furnish medical services is not good cause to excuse the failure to file the required medical reports. In summary, we hold that the claimant Strickland obtained the benefits of workmen's compensation insurance by reason of the waiver provisions of Section 440.04 (3), F.S.A.; his accident arose out of and in the course of his contractual obligation to Al Landers Dump Trucks, Inc.; the deputy's finding of average weekly earnings was not supported by competent, substantial evidence; and the payme...

...ot be provided to players, although coverage as a self-insured would continue as to all other employees. At the time of the injuries to appellants, the Dolphins had not again served notice of its election to waive the statutory exemption pursuant to section 440.04, Florida Statutes....

...n failing to find that the Dolphins waived the professional athlete exclusion by purchasing an excess worker's compensation insurance policy covering listed players, coaches, managers, and umpires. Appellants' argument on this point is predicated on section 440.04(2), Florida Statutes, which provides that the purchase and acceptance of worker's compensation insurance specifically covering *291 otherwise excluded employees constitutes a waiver of the exclusion of those employees from the act....

...The remuneration paid to all players, including appellants, was included in the policy declarations. That being so, appellants argue, this excess insurance constitutes direct worker's compensation insurance covering appellants and the Dolphins' purchase thereof amounts to a waiver of the professional athlete exclusion under section 440.04(2)....

...1973), the court held that while an employer with one employee is normally excluded from coverage under the workers' compensation act by definition in section 440.02(1)(b)2, nevertheless such coverage could be effected by the employer's election to be covered under section 440.04....

...g the regular 1978 season and to participate in spring and exhibition games. Because the Yankees had purchased a workmen's compensation insurance policy, the professional athlete exclusion under § 440.02(1)(c)3, Fla. Stat. (1977) is not applicable. § 440.04(2), Fla....

...y order requiring a tribal official to appear for deposition, and a writ of prohibition barring any further proceedings before the Division of Administrative Hearings. Id. Ms. Napoleoni countered that the Tribe had waived tribal immunity pursuant to section 440.04 of the Florida Statutes by purchasing a workers’ compensation insurance policy in 1974....

...on Act in the absence of a showing that respondents have waived or are estopped to use the provisions of Fla.Stat., § 440.09(1), F.S.A. so as to preclude a recovery by the petitioner. Petitioner first contends that under the provision of Fla.Stat., § 440.04(3) F.S....

...440.10 is an overriding "exception to the exclusion under definition of `employee' of corporate officers who exempt themselves from coverage." We find no pertinent precedent or persuasive reasoning for that view, or for the alternative reliance upon § 440.04(2), Florida Statutes, for alleged waiver by appellee of the exclusion election because appellant performed labor on the job site....

...ped from denying coverage. We reverse. We conclude that acceptance by Travelers of a workers' compensation policy issued to Jessie Key and Clyde Goley, identified as a partnership, does not constitute a waiver of Goley's exclusion from the act under § 440.04(2), Florida Statutes, nor do we find that Travelers acted in any manner which would estop it from denying coverage....

...ating Bureau. Under Florida law, a partner is an employer, not an employee. Fink v. Fink, 64 So.2d 770 (Fla. 1953). The partners here did not elect to be considered employees for compensation purposes. The argument that Travelers waived notice under § 440.04(2) by issuing the insurance policy is not persuasive....

...yling. We reverse. We conclude that the acceptance by the carrier of a workmen’s compensation policy covering claimant as an employee constitutes a waiver of her exclusion from the act and operates to bring her under the employer’s coverage. See Section 440.04(2), Florida Statutes (1975)....

...Rainwater was employed as the only cosmetologist at the shop on or about the time the policy became effective, July 25, 1975, 1 and Mr. Rainwater testified she continued to work as a beautician until March, 1977, when she became ill and was replaced by another employee. In addressing the effect of Section 440.04(3), 2 Florida Statutes (1973), our Supreme Court observed: [A] person not otherwise considered a covered “employee”, or whose services are not included in the definition of “employment”, but for whose benefit a contract of work...

...s been secured, is subject to the provisions of the Chapter by virtue of the acceptance of the policy by his employer and the writing of the same by the compensation carrier. We think there can be no question that the purpose and effect of Fla.Stat. § 440.04, F.S.A., is to empower an exempt employer to voluntarily as *1315 sume the obligations and privileges of the Workmen’s Compensation Act and thereby insulate himself from common law liability pursuant to Fla.Stat....

...This cause is remanded to the judge of industrial claims for further proceedings consistent with this opinion. SHIVERS and SHAW, JJ., concur. . Appellees candidly admit in their brief that Mrs. Rainwater was working at Vikings in August, 1975. . Now Section 440.04(2), Florida Statutes (1979).

Court finds these arguments unpersuasive. First, § 440.04 permits an otherwise exem/pt employer to waive

...safeguards of section 440.11 when it procures workers' compensation coverage for the benefit of another, if the covered party actually claims that coverage. We are unable to accept P & G's expansive reading of Mandico. The Mandico court interpreted section 440.04, Florida Statutes (1983), as granting an employer, which has in its "employ" an individual who is not included within the definition of "employee" under section 440.02(13) by virtue of being an independent contractor, the ability to ob...

...The clear language of the Mandico opinion does not extend to every unimmune "entity," but is confined to an "employer" which obtains workers' compensation benefits for an individual who is excluded from the definition of "employee" by law. The Mandico court stated: As we have recognized, the purpose and effect of section 440.04 is to "empower" an employer having in its employ one who is *341 excluded or exempted from the operation of the Law to voluntarily assume the obligations and privileges of the Workers' Compensation Law in relation to that individual and thereby insulate itself from common law liability pursuant to section 440.11....

...Mandico, 605 So.2d at 852. (Emphasis ours). The brief record before us is not susceptible of the interpretation that P & G is an employer which has Mann in its employ or that Mann is P & G's "employee not included in the definition of `employee'" under section 440.04(1), Florida Statutes (1991)....

...Further, in the instant case P & G does not have the direct contractual relationship with Mann that was present between Mandico and Taos Construction. Mandico, 605 So.2d at 851. Here, P & G has a contractual relationship not with Mann, but with Watkins, Mann's employer. Therefore, the provisions of section 440.04 as interpreted by Mandico have no applicability here....

...05 So.2d at 852; Jones, 72 So.2d at 287; Ramos, 655 So.2d at 90, we find it unnecessary to reach the further issues of whether the contractual arrangement between P & G and Watkins constitutes "procurement" of insurance by P & G sufficient to invoke section 440.04, Florida Statutes, or whether Mann's acceptance of workers' compensation benefits constituted an election of remedies....

Workers’ Compensation Law at issue in Mandico was section 440.04, Florida Statutes (1983), which provided that

...cility at Turkey Point. Second, FP & L is not entitled, as urged, to the workers' compensation exclusivity defense by virtue of its payment of workers’ compensation benefits to Huwer as an otherwise allegedly non-covered employee as defined by Section 440.04, Florida Statutes (1981)....

...ects not to accept the provisions of this chapter or who, after electing such exemption, then revokes that exemption shall mail to the division in Tallahassee notice to such effect in accordance with a form to be prescribed by the division. Further, Section 440.04(3) provides: A corporate officer who has exempted himself by proper notice from the operation of this chapter may at any time revoke such exemption and thereby accept the provisions of this chapter by giving notice as provided in § 440.05....

...We hold that Arbuckle’s notice of exemption filed November 1975 was effective to exempt her from coverage under the workman’s compensation policy issued by Kent Insurance Company. We disagree with the judge of industrial claims’ conclusions that an additional notice of exemption was required to effectuate exemption. Section 440.04(3), Florida Statutes specifically provides that an exemption from coverage may be revoked by giving notice in accordance with Section 440.05....

...evokes that exemption, shall mail to the Division in Tallahassee notice to such effect.... The carrier suggests that § 440.05(1) establishes the exclusive method by which a corporate officer may regain coverage after electing an exemption. However, § 440.04, Florida Statutes, relied upon by the deputy, provides that: (2) When any policy or contract of insurance specifically secures the benefits of this chapter to any person not included in the definition of ‘employee’ ......

...*849 (3) A corporate officer who has exempted himself by proper notice from the operation of this chapter may at any time revoke such exemption and thereby accept the provisions of this chapter by giving notice as provided in s. 440.05. The corporate officer provisions of § 440.-05 and § 440.04(3) were enacted in 1974; § 440.04(2) pre-dates those provisions, and it would thus appear that the qualifying phrase “notwithstanding the provision of s....

...in contained. The carrier argues that as the most recent legislative expression the corporate officer election provisions establish the sole method by which coverage may be regained after an elected exemption. But the statutes do not so provide, and § 440.04(2) expressly embraces “any person ... excluded or exempted” from coverage. Insofar as § 440.-02 is written without limitation, it would appear to encompass exempted corporate officers. If the legislature had intended to restrict § 440.04(2) so as not to encompass exempted corporate officers it could have so provided by express statutory reference when enacting the corporate officer election provisions in 1974. The legislature having declined to provide any clear directive in this regard, such intent should not be presumed in the face of the unlimited language of broad scope contained in § 440.04(2)....