State v. Fl Workers' Advocates , 167 So. 3d 500 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed June 24, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-2062
Lower Tribunal No. 11-13661
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The State of Florida,
Appellant,
vs.
Florida Workers’ Advocates, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.
Pamela Jo Bondi, Attorney General, and Allen Winsor, Solicitor General,
Adam S. Tanenbaum, Chief Deputy Solicitor General, and Osvaldo Vasquez,
Deputy Solicitor General (Tallahassee), for appellant.
Mark L. Zientz and Richard A. Sicking, for appellees.
Sugarman & Susskind, P.A., and Noah Scott Warman for Florida
Professional Firefighters as amicus curiae.
Michael J. Winer and Geoff Bichler, for Florida Justice Association;
Fraternal Order of Police; Police Benevolent Association; and International Union
of Police Associations, as amici curiae.
Akerman LLP and Katherine E. Giddings, Kristen M. Fiore, Gerald B.
Cope, Jr., and William W. Large for the Florida Chamber of Commerce and the
Florida Justice Reform Institute as amici curiae.
Gunster Yoakley & Stewart and Kenneth B. Bell for Associated Industries
of Florida; Associated Builders and Contractors of Florida; The Florida Insurance
Council; The Property Casualty Insurers Association of America; Florida Roofing,
Sheet Metal and Air Conditioning Contractors Assn.; The National Federation of
Independent Business; The Florida United Businesses Assn., Inc.; Sedgwick
Claims Management Services; The Florida Assn. of Insurance Agents, Inc.; The
Florida Restaurant and Lodging Assn., Inc.; and the Florida A.G.C. Council, Inc.,
as amici curiae.
Before SHEPHERD, C.J., and LAGOA and SALTER, JJ.
SALTER, J.
The State of Florida appeals a final summary judgment determining that
section 440.11, Florida Statutes (2014), the “exclusiveness of liability” provision
of the Florida Workers’ Compensation Law that immunizes from suit an employer
and its employees for covered, work-related injuries, is facially unconstitutional
under the United States and Florida Constitutions. Concluding that the threshold
requirements for the prosecution of such claims were not met, we reverse.
I. Proceedings Below
The initial claims and parties in this case at its inception in 2011 were
transformed by the present appellants and their counsel into a completely different
set of claims and parties over the three years which followed. In the process, the
case lost (1) the essential elements of a justiciable “case or controversy,” (2) an
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identifiable and properly-joined defendant, and (3) a procedurally proper vehicle
for the trial court’s assessment of the constitutionality of section 440.11.
A. Cortes v. Velda Farms
The case began with a caption unrecognizable in the style of the final
summary judgment and this appeal. Julio Cortes, an employee of Velda Farms,
LLC, filed the circuit court complaint alleging that he was injured in 2010 while
operating equipment for Velda Farms. Mr. Cortes’s wife was a co-plaintiff,
seeking damages for loss of consortium. The complaint acknowledged the
applicability of the Workers’ Compensation Law and the prior submission of Mr.
Cortes’s claim to the Judge of Compensation of Claims in Tallahassee. The
complaint asserted that Velda Farms and its employees were negligent in the
operation of Mr. Cortes’s workplace, and that Velda Farms should be estopped
from claiming immunity under the Workers’ Compensation Law because of the
denial of Mr. Cortes’s claim by Velda Farms and its insurer.
Velda Farms denied the allegations of the complaint1 and asserted numerous
affirmative defenses, including workers’ compensation immunity. To this point,
no party had raised an issue relating to the constitutionality of section 440.11.
1 Velda Farms initially moved to dismiss the complaint based upon the immunity
conferred by section 440.11 of the Workers’ Compensation Law. The motion was
granted as to Cortes’s estoppel count, but denied as to his negligence claim and his
wife’s loss of consortium claim.
3
In 2012, Mr. and Mrs. Cortes filed an amended complaint including new
allegations and an additional (fourth) count seeking a declaratory judgment that
sections 440.092 and 440.11 of the Workers’ Compensation Law are facially
unconstitutional or are unconstitutional as applied to Mr. Cortes. The plaintiffs did
not join the State of Florida as an additional defendant, but did mail a “notice of
constitutional question,” under Florida Rule of Civil Procedure 1.071 and Form
1.975, to the Attorney General of Florida.
B. Intervention by the Advocacy Groups
Several months later, Florida Workers’ Advocates (“FWA”) and the
Workers’ Injury Law and Advocacy Group (“WILG”) sought and were granted
intervention as additional plaintiffs. WILG alleged that it “is a nationwide
organization with attorney members licensed to practice in the State of Florida who
devote themselves to protecting the rights of Florida Citizens and upholding
Florida Civil Justice System [sic].” FWA alleged that:
FWA is a statewide organization with attorney members licensed to
practice in the State of Florida who devote themselves to protecting
the rights of the citizens of Florida and upholding the Florida Civil
Justice System and Florida Constitution. FWA members would be
affected by the declaration giving them the right to a choice to file
suit for their clients instead of the exclusive remedy in Chapter 440,
the Workers’ Compensation Act. FWA members assert they have
great interest in any action that would improve the rights of injured
workers.
2 Section 440.09 addresses the scope of coverage for on-job injuries.
4
In early 2013, Velda Farms voluntarily dismissed its affirmative defense of
workers’ compensation immunity as to Mr. Cortes’s injury claims. It moved to
strike or dismiss claims other than negligence and loss of consortium, or for partial
summary judgment on those non-tort claims. Velda Farms contended that any
remaining claims relating to statutory workers’ compensation issues—including
the declaratory judgment relief sought by WILG and FWA—had become moot and
should be dismissed for lack of subject matter jurisdiction.
In response, WILG and FWA moved the trial court to sever the declaratory
judgment count and to recognize their independent standing to test the
constitutionality of the workers’ compensation statutes. In that motion, WILG and
FWA conceded that (1) Velda Farms “no longer has standing to respond to Count
IV, the Count for declaratory relief,” and (2) that the Attorney General of Florida
was not a party in the case, though it had been mailed the notice of a constitutional
question pursuant to Florida Rule of Civil Procedure 1.071.
The motion to sever Count IV was granted by stipulation between the
intervenors and Velda Farms. Although the Attorney General had not filed a
notice of appearance or responsive pleading in the case, the trial court ordered that
Count IV “shall go forward to be tried separately by parties intervenors against the
State of Florida, Office of Attorney General pursuant to the February 15, 2012
service on the Attorney General of a Notice of Constitutional Question and
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Plaintiff’s compliance with Rule 1.071 Florida Rules of Civil Procedure.” The
trial court nonetheless directed that the action be recaptioned “In re: An Action for
Declaratory Judgment seeking a judgment that s.440.11 Fla. Stat. 2003 is invalid,”
with WILG and FWA designated as “petitioners” and the State of Florida, Office
of the Attorney General, as “respondent.”
The trial court denied the pending motion of WILG and FWA for summary
judgment on the declaratory judgment count, concluding that the two advocacy
groups lacked standing.
C. Padgett v. [?]
Next, Elsa Padgett, an individual workers’ compensation claimant in an
unrelated matter (an alleged 2012 on-job injury by the Miami-Dade County
employee) sought intervention as a new plaintiff regarding the declaratory
judgment count. Ms. Padgett alleged that she had obtained medical care and
limited economic benefits under the County’s workers’ compensation program of
self-insurance, but needed declaratory relief to determine “whether or not workers’
compensation benefits are my exclusive remedy for my on the job injury in light of
the fact that there is no compensation benefit in the law for my loss of wage
earning capacity . . . .” Ms. Padgett alleged that “the Attorney General has been
previously contacted in this cause and has expressed an intention not to participate
at the trial level.”
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Ms. Padgett’s motion to intervene was granted, and she then filed an
amended motion for summary final judgment on the declaratory judgment count.
The motion was supported by affidavits from Ms. Padgett and from numerous
attorneys with experience in workers’ compensation cases, and by the videotaped
deposition of an emeritus professor from Rutgers University and Cornell
University. Throughout this phase of the case, and as with WILG and FWA
previously, Ms. Padgett did not name the State or the Attorney General as a
defendant, nor did she serve them with original process.
D. The Order to Show Cause; Summary Final Judgment
The trial court then issued a “sua sponte order to show cause” why the
amended motion for summary judgment filed by Ms. Padgett, WILG, and FWA
should not be granted, noting that the court “has not received a response from the
State of Florida’s Attorney General’s Office, even though the record indicates
proper service.”3 The State advised the trial court in a written response to the show
cause order that “neither the State of Florida nor the Attorney General is a party in
this action,” and that the trial court “simply lacks subject matter jurisdiction to do
what the intervenors once again ask it to do.”4
3 Apparently the trial court accepted the argument that a notice of a constitutional
challenge mailed to the Attorney General is sufficient to align and implead the
State of Florida as a defendant. In reality, however, the State had not been joined
or named as a defendant, had not been properly served with original process, had
never filed any responsive pleading, and was under no procedural or statutory
compulsion to do so.
7
After reviewing the State’s response and the record, the circuit court entered
a twenty-page order granting the petitioners’ amended motion for summary final
judgment on the declaratory judgment issues. The court concluded that “the
Florida Workers’ Compensation Act, as amended effective October 1, 2003, does
not provide a reasonable alternative remedy to the tort remedy it supplanted. It
therefore cannot be the exclusive remedy. §440.11 is constitutionally infirm and
invalid.” This appeal followed.
II. Analysis
Two threshold legal issues—mootness and lack of standing—each preclude
Ms. Padgett, FWA, and WILG from pursuing the constitutional claims and
obtaining the relief granted below. We reverse the decision below on each of those
issues. Because we find the issues dispositive, we decline to review the trial
court’s analysis of the appellees’ state and federal constitutional claims.
A. Case or Controversy; Mootness
The only original defendant named as a party and duly served with process
relating to the declaratory judgment count was Velda Farms. When Velda Farms
dismissed its affirmative defense of workers’ compensation immunity vis-à-vis Mr.
Cortes, the declaratory judgment count became moot, and any further proceedings
4 Although preserving the primary arguments that the underlying case was moot
and that the State had never been joined as a defendant, the State’s response to the
order to show cause also argued that the workers’ compensation statutes are
constitutional.
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were an intervenors-only exercise. The Attorney General of Florida was not a
party to the case below.
Florida Rule of Civil Procedure 1.071, requiring a mailing by certified or
registered mail to the Attorney General when a pleading, motion, or other paper
draws into question the constitutionality of a state statute,5 specifically provides
that the mailing “does not require joinder” of the Attorney General as a party to the
action. While this grants the Attorney General the discretion to participate and be
heard in a particular case, Rule 1.071 neither compels such participation nor joins
the Attorney General as a party. See In re Amends. To Fla. R. Civ. P., 52 So. 3d
579, 582 (Fla. 2010) (Committee Notes to 2010 Adoption); State ex rel. Shevin v.
Kerwin, 279 So. 2d 836, 838 (Fla. 1973) (“Since many constitutional challenges
are raised in a trial court which can be simply disposed of as obviously meritless, it
would be futile for the Attorney General to defend each statute against all
constitutional challenges at the trial level.”6).
5 The provision also applies when the challenge is directed to a county or
municipal charter, ordinance or franchise.
6 In the next sentence in Shevin, however, the Supreme Court of Florida confirmed
that the Attorney General has the right to “appear on appeal to defend the statute”
when a trial court has found, as here, a statute to be unconstitutional—even in a
case in which the State and Attorney General elected not to defend the statute in
the trial court. Shevin, 279 So. 2d at 838.
9
The appellees argue in response that their constitutionality challenge
satisfies the requirements of an exception to mootness, an exception applicable to
cases that are “capable of repetition, yet evading review.” Johnson v. State, 60 So.
3d 1045, 1049 (Fla. 2011) (citing State v. Matthews, 891 So. 2d 479, 484 (Fla.
2004)). In Matthews, the Supreme Court of Florida also described a mootness
exception applicable to a case when “the question before this Court is of great
public importance and likely to recur.” Id. at 483 (citing Holly v. Auld, 450 So. 2d
217, 218 n. 1 (Fla. 1984)). Florida appellate courts have also recognized federal
decisions applying the mootness exception, “capable of repetition, yet evading
review:”
[T]here is a narrow, but well-established, exception to the mootness
doctrine for controversies that are “capable of repetition, yet evading
review.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563,
100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (citing Southern Pacific
Terminal, Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515,
31 S. Ct. 279, 55 L.Ed 310 (1911)). That exception applies when “(1)
the challenged action was in its duration too short to be fully litigated
prior to its cessation or expiration, and (2) there [is] a reasonable
expectation that the same complaining party will be subjected to the
same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96
S. Ct. 347, 46 L. Ed. 2d 350 (1975).
Morris Publ’g Grp., LLC v. State, 136 So. 3d 770, 776 (Fla. 1st DCA 2014).7
On the present record, and no matter which of these formulations is applied,
the present case is moot. This is so because claimant injuries, worker’s
7 See also Fla. Dep’t of Children & Families v. Davis Family Day Care Home, 160
So. 3d 854 (Fla. 2015) (Canady, J., dissenting).
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compensation claims, and employer defenses are individualized; and such cases
have not been shown, as a category of cases, to be short in duration or to “evade
review.”
B. Standing
Regarding the intervenors’ claims of standing, the State’s arguments are also
well taken. As intervenors, Ms. Padgett, WILG, and FWA took the procedural
posture of the case as it stood when they were allowed to intervene. Omni Nat’l
Bank v. Ga. Banking Co., 951 So. 2d 1006 (Fla. 3d DCA 2007). Their
intervention was in subordination to the then-existing claims in the lawsuit. Fla. R.
Civ. P. 1.230; Let Miami Beach Decide v. City of Miami Beach, 120 So. 3d 1282
(Fla. 3d DCA 2013); Hoechst Celanese Corp. v. Fry, 693 So. 2d 1003, 1008 (Fla.
3d DCA 1997). The case law does not support some sort of “piggy-back” standing
by an intervenor based exclusively on a predecessor plaintiff’s subsequently-
dismissed claim.
Intervention is a dependent remedy in the sense that an
intervenor may not inject a new issue into the case. . . . Furthermore,
the rights of an intervenor are conditional in that they exist only so
long as the litigation continues between the parties. For example, a
voluntary dismissal by the party asserting a claim will generally
foreclose the rights of an intervenor who wished to address that
claim.
Envtl. Confed’n of Sw. Fla. Inc. v. IMC Phosphates, Inc., 857 So. 2d 207, 211
(Fla. 1st DCA 2003) (citations omitted).
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As associations of workers’ compensation practitioners throughout the
United States (WILG) and Florida (FWA), these advocacy groups may have an
economic interest in establishing their clients’ rights to file tort claims, but that
indirect interest does not confer standing upon them in the present case. McCarty
v. Myers, 125 So. 3d 333, 336-37 (Fla. 1st DCA 2013) (finding that, in an access-
to-courts constitutional challenge by health care providers to certain statutes
governing personal injury protection (“PIP”) coverage, loss of PIP-claim revenue
did not confer standing on the providers).
Nor do WILG and FWA satisfy the established requirements for association
standing in this case. See Warth v. Seldin, 422 U.S. 490, 510 (1975). Addressing
only the first of those requirements, the associations in the present case are not
suffering immediate or threatened injury of the kind comprising a justiciable issue
had an individual member of the association—in this case, an attorney regularly
representing workers’ compensation claimants—brought the action. See also
Hillsborough Cnty. v. Fla. Rest. Ass’n, Inc., 603 So. 2d 587 (Fla. 2d DCA 1992).
III. Conclusion
For these reasons, we conclude that the trial court lacked a justiciable case
or controversy within which to determine, and the intervenor/appellees lacked
standing to assert, that the challenged provisions of the Florida Workers’
Compensation Law are unconstitutional. The summary final judgment below is
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reversed. The case is remanded for the dismissal of Count IV of the amended
complaint.
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