Pamela Mitchell v. Osceola County School Board , 159 So. 3d 334 ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
PAMELA MITCHELL, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-2875
OSCEOLA COUNTY SCHOOL
BOARD, JOHNS EASTERN
CO., INC. AND LIBERTY
MUTUAL COMMERCIAL INS.
EXCESS,
Appellees.
_____________________________/
Opinion filed March 10, 2015.
An appeal from an order of the Judge of Compensation Claims.
Thomas W. Sculco, Judge.
Date of Accident: August 23, 2011.
Nicholas A. Shannin of the Shannin Law Firm, P.A., Orlando, and Blake J. Lange
of Morgan & Morgan, P.A., Naples, for Appellant.
Pamela J. Cox and Jodi K. Mustoe of Cox & Rouse, P.A., Maitland, for Appellees.
PER CURIAM.
In this workers’ compensation case, Claimant appeals the Judge of
Compensation Claims’ (JCC’s) order dismissing and denying all pending petitions
for benefits (PFBs) based on his determination that Claimant failed to establish an
employer-employee relationship with Appellee Osceola County School Board
(OCSB). Because it is not clear to us that the JCC employed the proper legal
standards in concluding OCSB was not a statutory employer under section
440.10(1)(b), Florida Statutes (2011), we reverse and remand for further
proceedings.
On August 23, 2011, Claimant was assisting in a veterinary clinic for
Pawsitive Action housed at Harmony High School (HHS) in Osceola County when
she was bitten by a dog, suffering injuries. Claimant filed multiple PFBs against
Pawsitive Action (a nonprofit organization) as her employer and HHS/OCSB as her
statutory or special employer. Claimant voluntarily dismissed all PFBs against
Pawsitive Action, which had no workers’ compensation coverage.
The litigation of the remaining PFBs was subsequently bifurcated so that the
only issue for determination at the final hearing was whether an employer-employee
relationship existed between OCSB and Claimant. Claimant raised several legal
theories to establish OCSB as her employer, including that of a statutory employer
under section 440.10(1)(b), which provides:
In case a contractor sublets any part or parts of his or her
contract work to a subcontractor or subcontractors, all of
the employees of such contractor and subcontractor or
subcontractors engaged on such contract work shall be
deemed to be employed in one and the same business or
establishment, and the contractor shall be liable for, and
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shall secure, the payment of compensation to all such
employees, except to employees of a subcontractor who
has secured such payment.
The JCC rejected all of Claimant’s theories, finding, in particular, that OCSB was
not Claimant’s statutory employer under 440.10(1)(b).
Here, the undisputed evidence showed that Pawsitive Action and HHS had a
“business partnership” whereby HHS students in the school’s veterinary assisting
program were given the opportunity to obtain required clinical hours by assisting
with, and observing, veterinary services provided by Pawsitive Action to county
residents at a reduced cost. Significantly, OCSB prepared a pamphlet entitled
“Harmony High School Veterinary Assisting Pet Clinic” which described the
school’s program at HHS and the low-cost services available at the veterinary clinic
located at HHS, listing the prices of various services for the potential customers of
the clinic. This pamphlet was published by OCSB (or its direct agents), and
distributed at the front desk of HHS or at the front desk in the guidance department.
Although Pawsitive Action set the prices for the described veterinary services and
received all the fees for its own use as a non-profit, the pamphlet explains that HHS
students “participate in all areas of clinic procedures and provide animal care under
the direct supervision of licensed veterinarians, vet technicians, vet assistants or
program instructors.”
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In the final order on appeal, the JCC ruled that OCSB was not a statutory
employer under section 440.10(1)(b), based on his determination that there was no
evidence of a contractual obligation owed to a third party and then sublet to
Pawsitive Action by OCSB. Indeed, there is no formal written contract here—either
between OCSB and Pawsitive Action or between OCSB and the county residents. It
is well established, however, that to satisfy section 440.10(1)(b), the contractual
obligation may be implied, and does not need to be pursuant to an express provision
in a written contract. See, e.g., Rabon v. Inn of Lake City, Inc., 693 So. 2d 1126,
1129 (Fla. 1st DCA 1997); Delta Air Lines, Inc. v. Cunningham, 658 So. 2d 556,
557 (Fla. 3d DCA 1995), review denied, 668 So. 2d 602 (Fla. 1996). Moreover, a
contract may arise from an offer contained in an advertisement. See, e.g., Izadi v.
Machado (Gus) Ford, Inc., 550 So. 2d 1135, 1139 (Fla. 3d DCA 1989).
In Antinarelli v. Ocean Suite Hotel, 642 So. 2d 661, 663-64 (Fla. 1st DCA
1994), this court held that a hotel met the definition of a statutory employer for
employees of a restaurant not owned or operated by the hotel, where the hotel, as
part of its marketing strategy, provided guests with meal vouchers redeemable only
at the specified restaurant. Applying our reasoning in Antinarelli, we conclude that
here, there was evidence that could establish a contract between OCSB and the
community for low-cost veterinary services as evidenced by the pamphlet prepared
by OCSB for the obvious purpose of offering veterinary services to county residents.
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We further conclude that the evidence could support a finding that some portion of
OCSB’s contractual obligation to county residents for veterinary services, as offered
by the pamphlet, was sublet by OCSB to Pawsitive Action, Claimant’s employer. In
the order on appeal, the JCC concluded that OCSB did not enter into any contracts
with the public to provide veterinary services, but in so concluding, the JCC
provided insufficient legal analysis as to whether the advertising published by
OCSB, ostensibly offering the services of its “business partnership” at specific prices
(to be paid by the public, not the students), comprised a contractual offer that could
be accepted by members of the public to form a contract. Accordingly, because we
are uncertain that the JCC employed the correct standards to reach the ultimate
conclusion in this case, we reverse and remand for reconsideration of the evidence
using the proper standards.
In reaching this determination, we find no contradiction between our ruling
in Rabon and the unique circumstances here involving public school participation in
a “business partnership” for the provision of veterinary services. In Rabon, we held
that the definition of “statutory employer” under section 440.10(1)(b) requires a
contractual obligation, not an obligation under statutory or common law. Although
the general obligation OCSB has to county residents to provide educational services
derives from constitutional or statutory law, rather than a contract, the specific
contractual obligation at issue here concerns the low-cost veterinary services made
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available to county residents. The educational services otherwise provided by OCSB
are thus immaterial to the narrow question of whether OCSB published an
advertisement offering veterinary services, to be accepted by members of the public.
Accordingly, the JCC’s order finding that OCSB is not Claimant’s statutory
employer under section 440.10(1)(b) is REVERSED and the case is REMANDED
for further proceedings consistent with this opinion.
MARSTILLER, RAY, and SWANSON, JJ., CONCUR.
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