TENNECO, INC. AND TRAVELER'S INSURANCE COMPANY, APPELLANTS,
v.
MICHAEL MONTANA, APPELLEE
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In a workers' compensation case, the Florida First District Court of Appeal affirmed the deputy's decision to include concurrent earnings from a corporate officer/part-ownership position in the claimant's average weekly wage calculation, rejecting the employer/carrier's argument that a lapsed insurance policy rendered those earnings non-includible.
The court held that whether a claimant was covered by a workers' compensation insurance policy in concurrent employment is irrelevant to whether concurrent earnings are includible in the average weekly wage calculation. The existence or maintenance of insurance coverage does not determine whether employment is covered by the Act.
[1] Whether a claimant was covered by a workers' compensation insurance policy in his concurrent employment is irrelevant to whether his concurrent earnings are includible in…
[2] The lapse of workers' compensation insurance coverage by a concurrent employer does not render the claimant's concurrent earnings non-includible in the average weekly wag…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“whether an employer acquires workers' compensation insurance — or once acquired, whether the employer keeps such insurance in force — is unrelated to whether the Act covers that employment”
Establishes the core principle that insurance status is irrelevant to coverage determination under the Act
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Join FLexlaw to unlock all legal intelligenceThe claimant was injured and received workers' compensation benefits. At the time of injury, the claimant held concurrent employment as an officer and…
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NIMMONS, Judge.
In this appeal by the employer/carrier we find only one issue which merits discussion. The deputy based the claimant’s average weekly wage (AWW) in part on the claimant’s concurrent earnings derived from his position as an officer and part owner of a corporation. It was the policy of this corporation to keep workers’ compensation insurance in place for all of its employees, but the claimant discovered subsequent to his injury that another officer had permitted the insurance to lapse by failing to pay the premiums. The employer/carrier contend that the insurance lapse renders the claimant’s otherwise includible concurrent income from this venture non-includible. We disagree and affirm.
The authorities relied upon by appellants deal with the principle that concurrent wages earned in types of employment which are excluded from coverage under the Workers’ Compensation Act cannot be included in the AWW calculation. E.g. State of Florida, Department of Corrections v. Tharpe, 413 So. 2d 159 (Fla. 1st DCA 1982) (employer with less than three employees); Randell, Inc. v. Chism, 404 So. 2d 175 (Fla. 1st DCA 1981) (independent contractor); Rollins Building Services, Inc. v. Thomas, 393 So. 2d 665 (Fla. 1st DCA 1981) (domestic servant). But whether an employer acquires workers’ compensation insurance — or once acquired, whether the employer keeps such insurance in force — is unrelated to whether the Act cov ers that employment. We hold that whether a claimant was covered by a workers’ compensation insurance policy in his concurrent employment is irrelevant to whether his concurrent earnings are includible in the AWW calculation.
We note that the Florida Supreme Court in American Uniform & Rental Service v. Trainer, 262 So. 2d 193 (Fla.1972) discarded the principle announced in J.J. Murphy & Son, Inc. v. Gibbs, 137 So. 2d 553 (Fla.1962), that concurrent earnings from dissimilar employment otherwise covered by the Act are not includible in the AWW calculation. The Court noted the inequitable results frequently occurring under the old rule and concluded that nothing in the body of the Act compelled such a principle. The Court went on to point out that under the J.J. Murphy rule an employee often would not know until after he was injured whether his concurrent employment was sufficiently similar to gain him full compensation for his lost income. Similarly, an employee faced with inadequate compensation because of his employer’s lack of insurance would typically have no way of realizing his circumstance until it is too late. We conclude that appellants' proposed rule of law is equally unsupported by the wording and policy of the Act and carries comparable potential for unfairness.
Appellants point out that the claimant was much more than just an employee of the concurrent employer and was, in fact, an officer and part owner of the corporation. Appellants ask us to hold that the wages from the claimant’s collateral employment should not be factored into the AWW determination because the claimant’s position with the collateral employment was such that he should be deemed responsible for the lack of insurance coverage. To adopt such a position would require that we carve out an exception for employees who exercise such degree of control over the affairs of their employers so as to be deemed responsible for the actions or inac-tions of the employers. The exception urged by appellants, which would involve a new species of factual issue, has little to commend it and would invite additional disputes in a field already heavily burdened with litigation.
We have examined the remaining points urged by appellants and find them to be without merit.
AFFIRMED.
SHIVERS and WENTWORTH, JJ., concur.
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Markham Iley & Kemper Grp. v. Linzey, 531 So. 2d 1361 (Fla. 1st DCA 1988)…r); Rollins Building Services, Inc. v. Thomas, 393 So. 2d 665 (Fla. 1st DCA 1981) (domestic servant); Wilson v. City of Haines City, 97 So. 2d 208 (Fla. 2d DCA 1957) (independent contractor). See also Tenneco, Inc. (Traveler’s Insurance) v. Montana, 520 So. 2d 615 (Fla. 1st DCA 1988); Anna Maria Fire Control District v. Angell, 528 So. 2d 456 (Fla. 1st DCA 1988). None of these cases, however, has dealt with the seasonal worker provision in section 440.14(l)(c) and the precise issue before us. Consequently, it…1 / 3
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Anna Maria Fire Control Dist. & Commercial Union Ins. Co. v. Angell, 528 So. 2d 456 (Fla. 1st DCA 1988)…le that Angelí is not an “employee” covered by the Act. This is not by virtue of his failure to have worker’s compensation insurance coverage, since such coverage is irrelevant to whether the Act covers specific employment. Tenneco, Inc. v. Montana, 520 So. 2d 615 (Fla. 1st DCA 1988). However, the term “employee” only includes sole proprietors who devote full time to the proprietorship, over which there is no dispute herein, and who elect to be included in the definition of “employee” by filing notice to that…
Authorities Cited
- J. J. Murphy & SON, Inc. v. Gibbs, 137 So. 2d 553 (Fla. 1962)
- Am. Unif. & Rental Serv. & Shelby Mut. Ins. Co. v. Verle Trainer & The Indus. Relations Comm'n, 262 So. 2d 193 (Fla. 1972)
- Randell, Inc. v. Chism, 404 So. 2d 175 (Fla. 1st DCA 1981)
- Rollins Bldg. Servs., Inc. v. Thomas, 393 So. 2d 665 (Fla. 1st DCA 1981)
- State v. Tharpe, 413 So. 2d 159 (Fla. 1st DCA 1982)