IN THE SUPREME COURT OF FLORIDA CASE NO.: SC12-2450 S OCEAN REEF CLUB, INC., a Florida corporation, Petitioner, v. CHERRYE WILCZEWSKI and LAURA LEON, Respondents. RESPONDENTS' BRIEF ON JURISDICTION BILLBROUGH & MARKS, P.A. By: G. Bart Billbrough 100 Almeria Avenue, Suite 320 Coral Gables, Florida 33134 Email: [email protected]Tel: (305) 442-2701 Fax: (305) 442-2801 Counsel for Respondents BILLBROUGH & MARKS, P.A. 100 ALME1UA AVENUE - SUrrE 320 · CORAL GABLES, FLORIDA 33134 • TELEPHONE 305.442.2701 · FAX 305.442.2801
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IN THE SUPREME COURT OF FLORIDA CASE NO.: SC12-2450 S OCEAN REEF … · 2018. 7. 22. · IN THE SUPREME COURT OF FLORIDA CASE NO.: SC12-2450 S OCEAN REEF CLUB, INC., a Florida corporation,
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IN THE SUPREME COURT OF FLORIDA
CASE NO.: SC12-2450 S
OCEAN REEF CLUB, INC., a Florida corporation,
Petitioner,
v.
CHERRYE WILCZEWSKI and LAURA LEON,
Respondents.
RESPONDENTS' BRIEF ON JURISDICTION
BILLBROUGH & MARKS, P.A.By: G. Bart Billbrough100 Almeria Avenue, Suite 320Coral Gables, Florida 33134Email: [email protected]: (305) 442-2701Fax: (305) 442-2801
THEDECISIONBELOWDOESNOTCREATEABASISFOR JURISDICTION IN THIS COURT BECAUSETHERE IS NO DIRECT AND EXPRESS CONFLICTBETWEEN THE THIRD DISTRICT'S DECISION ANDTHE DECISIONS OF OTHER DISTRICT COURTS OFAPPEAL OR THIS COURT ON THE SAME ISSUE OFLAW.
precluded an employer from thereafter invoking workers' compensation immunity.
Ours is the only case which has ever squarely addressed this issue and no other case
has even touched upon the specific issue of law involved. As such, there are no other
cases which can stand in direct and express conflict with our case on the same point
of law so as to create conflict jurisdiction.
ARGUMENT
THE DECISIONBELOWDOES NOT CREATE A BASISFOR JURISDICTION IN THIS COURT BECAUSETHERE IS NO DIRECT AND EXPRESS CONFLICTBETWEEN THE THIRD DISTRICT'S DECISION ANDTHE DECISIONS OF OTHER DISTRICT COURTS OFAPPEAL OR THIS COURT ON THE SAME ISSUE OFLAW.
Pursuant to Fla. R. App. P. 9.030(a)(2)(A)(iv), this Court has discretionary
jurisdiction to review "decisions ofthe district courts ofappeal that . . . expressly and
directly conflict with a decision ofanother district court of appeal or of the supreme
court on the same issue of law."' The situations justifying the invocation of
jurisdiction to review district court decisions because ofalleged conflicts are: (1)the
announcement of a rule of law which conflicts with a rule previously announced by
this or another court, or (2) the application of a rule of law to produce a different
result in a case which involves substantially the same controlling facts as a prior,
' The standard of appellate review is accordingly de novo.
Botanicals Corp., 615 So.2d 811 (Fla. 1st DCA 1993). The Timmeny court held that
where the employer/carrier did not afford adequate notice to the claimant of a
possible entitlement to disability benefits during the limitation period, the E/C was
estopped from asserting the statute of limitation defense in the workers'
compensation case until the claimant was first notified that his condition was
compensable. Timmeny, 615 So.2d at 182.
Timmeny is a workers' compensation case involving a statute of limitation
issue, not a civil tort case involving workers' compensation immunity. Timmeny's
holding focuses on how a statute of limitations is applied, and the instant case
involves whether a workers' compensation immunity defense can be equitably
asserted where the employer failed to comply with its statutory obligations for a
known and noticed employee injury and workers' compensation benefits are no
longer available. There is no express and direct conflict between our case and
Timmeny because they considered different points oflaw, involved different holdings,
and the issues arose under very different factual circumstances.3
3 This likewise addresses the citation of the cases found in the Petitioner'sjurisdictional brief in footnotes 4 and 5 on page 12. Each of these cases areworkers' compensation cases dealing with the appropriate application of a statuteof limitation, not a civil case involving estoppel to assert workers' compensationimmunity. Neither Timmeny nor the cases cited in the footnote even addressed thelegal issue here -that failure to comply with Section 440.185(2)can result in a lossof tort immunity.
legal effect of such conduct on an affirmative defense of workers' compensation
immunity.4
This second conflict argument is remarkably misleading because no workers'
compensation proceedings ever occurred because no notice was ever provided to the
employees about their rights. The factual predicate for our case's holding is that
Ocean Reef was on actual notice of a workplace injury; violated its statutory
obligation to report it to the carrier upon that notice; submitted the claim to its carrier
upon the civil suits; and received a denial ofworkers' compensation benefits because
the injuries were not related to employment and because the statute of limitations had
run. Despite this, Ocean Reef asserted workers' compensation immunity, which the
Third District rejected due to the failure to comply with the notice statute, which
precluded benefits to the Respondents. Neither Mena, Tractor Supply, Byerley,
Quality Shell, Elliott, nor Schroeder involved such a failure or a discussion of the
legal ramifications of that failure.
This Court's conflict jurisdiction is based not upon a party's contentions, but
rather is based upon the question ofwhether a district court's decision is in express
* In our case, the issue was whether workers' compensation immunity could beinvoked when workers' compensation benefits were unavailable due to thestatutory violation by the employer, and the legal import of the employer'sinconsistent assertion ofworkers' compensation immunity as a defense in the civilproceedings.