AETNA CASUALTY & SURETY CO., APPELLANT,
v.
EILEEN HOUGHTON AND MICKEY CHASE ENTERPRISES, APPELLEES

Fla. 1st DCA | 1994-02-07
No. 92-2351
JOANOS, KAHN and WEBSTER, JJ., concur.
632 So. 2d 103 Florida District Court of Appeal, First District (1994) Positive Treatment
Cited by 2 cases

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Synopsis

A workers' compensation case involving a dispute over insurance coverage dates and whether an insurer must pay benefits and attorney fees. The court affirmed that Aetna must pay the claimant's benefits for an accident occurring during a period when Aetna claims coverage had lapsed, but reversed the award of attorney fees to the employer's attorney.


Holding

Aetna's assertion of lack of coverage is an affirmative defense that was abandoned and waived by Aetna's failure to appear at the merits hearing to present evidence. Therefore, Aetna must pay the claim. The claimant's attorney is entitled to recover fees from Aetna, but the employer's attorney is not.


Headnotes

[1] An affirmative defense in a workers' compensation case is abandoned if not presented with clarity during proceedings before the judge of compensation claims.

[2] Failure to appear at a merits hearing in a workers' compensation case constitutes abandonment of an affirmative defense.

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Key Quotes

“In the circumstances of this case, Aetna's assertion that it did not provide coverage to Mickey Chase Enterprises at the time of claimant's accident was an affirmative defense.”

Establishes that Aetna's coverage denial is an affirmative defense subject to waiver

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Facts & Procedural History

Claimant filed a workers' compensation claim naming Mickey Chase Enterprises as employer and Aetna as the carrier. Aetna had issued a notice of denial…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is a workers’ compensation ease. Claimant filed a claim for benefits naming appellee Mickey Chase Enterprises as the employer and appellant (Aetna) as the carrier. Several months earlier, Aetna had filed a notice of denial, in which it asserted that “Aetna coverage for the Employer expired 5/31/90 and was reinstated 8/17/90. Mickey Chas.e Enterprises was uninsured from 5/31/90 through 8/17/90 which includes the date of accident: 8/16/90.” It is undisputed that, although it had notice of the time and place of both the pretrial conference and the merits hearing, no representative of Aetna appeared at either. The judge of compensation claims entered an order directing that Mickey Chase Enterprises and Aetna pay the claim, and concluding that both claimant’s attorney and the attorney for Mickey Chase Enterprises were entitled to recover fees from Aetna. It is from that order that Aetna appeals.

We affirm the direction that Aetna pay the claim. In the circumstances of this case, Aetna’s assertion that it did not provide coverage to Mickey Chase Enterprises at the time of claimant’s accident was an affirmative defense. As such, it was abandoned when Aetna failed to appear at the merits hearing to present evidence. See Bay Automotive v. Allaire, 593 So. 2d 589 (Fla. 1st DCA 1992) (affirmative defense is waived if not presented with clarity during proceedings before judge of compensation claims). We also affirm the conclusion that claimant’s attorney was entitled to recover a fee from Aetna. However, because there is no authority for the conclusion .that the attorney for Mickey Chase Enterprises was also entitled to recover a fee from Aetna, we reverse that portion of the order. AFFIRMED IN PART; and REVERSED IN PART.

JOANOS, KAHN and WEBSTER, JJ., concur.


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Citator

Cited By

  • Crawford & Company-Orlando v. Connors, 840 So. 2d 1060 (Fla. 1st DCA 2003)
    …mative defense that no coverage existed for claims brought against the employer resulting from dates of accidents occurring before the date of the termination of the agreement, or before September 18, 1998. Compare Aetna Cas. & Sur. Co. v. Houghton, 632 So. 2d 103 (Fla. 1st DCA 1994). As a result, she denied the motions and entered the amended compensation order. Because we conclude competent, substantial evidence supports such determination, the order is AFFIRMED. BARFIELD, J., concurs; WOLF, J., dissents…

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