MINERVA HERNANDEZ, as Personal

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					                                                                                                 QA<
                                                                               FILED
                                                                          #HOW          D.HALL
                                                                             MAR 2 6 2001
         N
         l THE SUPREME COURT OF FLORIDA
                                                                                           o m
                                                                          CLERIC. SUPSEME C U
                                                                          BY
                         CASE NO. SCOO-2 176

           UNITED CONTRACTORS COW., alWa
             UNITED CONTRACTORS, INC.,

                                  Petitioner,

                                        VS.


        MINERVA HERNANDEZ, as Personal
   Representative of the Estate of Ariel Hernandez, and
                       Individually,
                                 Respondent.




                  /'JAY M. LEVY, ESQUIRE
                      JAY M. LEVY, P.A.
             9130 SOUTH DADELAND BOULEVARD
              TWO DATRAN CENTER, SUITE 1701
                    MIAMI, FLORIDA 33 156
                     PHONE: (305) 670-8100


                                 JAY   M.L W PA.
                                          E ,
also SOUTH DADELAND BOULEVARD TWO DATW C E ~ R        SUIT*: 1701   MIAMI, FL s s m ~
                TELEPHONE (aw) 870.~100 TELECOPIER (806) 670-0082
                                           TABLE OF CONTENTS

ITEM                                                                                                       PAGE

I.       Statement of the Case...................................................................... 1-2

11.      Jurisdictional Point Involved ..........................................................          .2

111.     Summary ofthe Argument.............................................................

IV.      Argument

         THE INSTANT CAUSE IS NOT IN DIRECT
         CONFLICT WITH THE DECISION OF THE
         FOURTH DISTRICT IN MICHAEL V , CENTEX-
         R OONE Y CONSTRUCTION, CO..................................................                       2-7

v.       Conclusion.....................................................................................   .8

IV.      Certificate of Service............................................,.................,.......8.




                                       JAY M,LEVY. P A
       9130 SOUTH DADELAND BOUIXVAKII T W O DATRAN CENTER SUITE 1701                                MIAMI, FL 33156
                       TELEPHONE (305)610-8100 TELECOPIER (306)670-0033
I




                                           TABLE OF CITATIONS

    ITEM                                                                                    PAGE
    Jenkins v. State,
          385 So.2d 1356 (Fla. 1980)....................................................     3

    Michael v. Centex-Rooney Construction Co.,
         645 So.2d 133 (Fla. 4DCA 1994)...........,...............................passim.

    Reeves v. State,
          385 So.2d 829 (Fla. 1986)......................................................    3.




         9130 YOUTH UA13B:LANU BOULEVARD
                              TELEPHONE
                                                   .
                                                   JAY M. LEVY,Rk
                                                     TWO DATRAN CENTER
                                             (306) 670-8100 TELECOPIER (306)
                                                                                SUITE 1701
                                                                            670-0032
                                                                                             MIAMI, FL BYlBtr
                        N
                       I THE SUPREME COURT OF FLORIDA


                                                          CASE NO: SCOO-2 176
                                                          3DCA CASE NO: 3D99-00569

UNITED CONTRACTORS COW,
&a UNITED CONTRACTORS, NC,

         Petitioner,

VS.                                                       Respondent’s Supplemental
                                                          Jurisdictional Brief
MAMA MINERVA HERNANDEZ, as
Personal Representative of the Estate of
Ricardo Ariel Hernandez and individually,

         Respondent.
                                                      /

                                                 I
                                     statement of the Case

         Respondent has previously filed a jurisdictional brief responding to the

arguments advanced by Petitioner in its jurisdiction brief. In her jurisdictional brief,

Respondent explained why each case upon which Petitioner relied as creating conflict

jurisdiction was not in conflict with the decision rendered by the Court below. This

Coul-t has ordered Respondent to file a supplemental jurisdictional brief addressing

whether the opinion rendered below is in conflict with Michael v. Centex-Rooney

Construction Co., Inc., 645 So.2d 133 (Fla. 4DCA 1994), a case not relied upon


                                                  1

                                          JAY M. L W P A
                                                  E ,
      9130 SOUTH DADELAND B O U I X V M U TWO DATRAlv CENTER SUITE 1101       MIAMI.   FL 33168
                     TELEPHONE (SW)      670-8100 TELECOPIER (305) 670-0032
Petitioner for jurisdictional conflict. This brief is written in compliance with that

requirement.

                                          I1
                            Jurisdictional Point Involved

                                                N
               WHETHER THE INSTANT CAUSE IS NOT I DIRECT
               AND EXPRESS CONFLICT WITH THE DECISION OF
               THE FOURTH DISTRICT IN MICHAEL V. CENT=-
               ROONEY CONSTRUCTION CO.?

                                         1
                                        11
                              Summary of the Argument

      The decision of the court below is not in direct and express conflict with the

decision of the Fourth District Court of Appeal in Michael v. Centex-Rooney

Construction Co., 645 So.2d 133 (Fla. 4DCA 1994)

                                           TV
                                      Argument

               THE INSTANT CAUSE IS NOT IN DIRECT AND
               EXPRESS CONFLICT WITH THE DECISION OF THE
               FOURTH DISTRICT IN MCHAEL V. CENTEX-ROONEY
               CONSTRUCTION CO.

       This Court has asked Respondent to address whether Michael v. Centex-Rooney

Construction Co., supra., is in conflict with the opinion rendered by the Third District

below. As noted above, Petitioner has not claimed that the decision of the Third

District is in conflict with Michael. Since Petitioner has not raised any claim of

conflict with Michael, this court should follow the general rule that issues not raised
                                              2

                                    JAY M.LEVY. PA.
                                          -
   0190 SOUTH DADELAND HOWIJWARD TWO DATRAN CENTER SUITE 1701
                   TELEPHONE ($06) 870-8100 TELECQPXER (301)870-0033
                                                                       MIAMI, FL Y Y 1 5 8
by a party appellant are waived and confine its determination of the jurisdictional issue

to the decisions argued by Petitioner in its jurisdictional brief in determining whether

conflict is present.

      Notwithstanding Respondent’s position that this court should not consider

whether the decision below is in conflict with Michael, as requested by this Court,

Respondent will address whether there is a conflict between Michael and the decision

rendered below. As noted in Respondent’s Brief on Jurisdiction, in order to vest this

Court with conflict jurisdiction, the decision rendered below must expressly and

directly conflict with the decision of another District Court of Appeal or this Court in

the same point of law. Jenkins v. State, 385 So.2d 1356 (Fla. 1980). This conflict

must appear within the four corners of the decision. Reeves v. State, 385 S0.2d 829

(Fla. 1986). When viewed in this light, the decision of the Fourth District in Michael

v. Centex Rooney, supra. is not an express and direct conflict with the decision

rendered below on the same point of law.

      In reversing the summary judgment entered by the circuit court, the court below

considered the doctrine of election of remedies. The court below first set out the

applicable facts:

             At mediation, Hernandez and CA’s workers’ Compensation
             carrier reached a settlement. They entered into a stipulation
             to discharge any further liability and benefits in exchange
             for a lump sum payment of $10,000 of workers’
                                           3

                                  JAY M,LEVY. PA.
   9130 SOUTH DADELAND SOUWEVAHD Two DATRAN CENTER SUITE 1701 MIAMI, FL       asim
                  TELEPHONE (50s)670-moo TELECOPIER (306) O - O O ~ ~
                                                         W
             Compensation death benefits. The terms of the settlement
             agreement dictated that no admissions were being made by
             either side and the employer specifically reserved all
             defenses, including compensabiliv, employer/employee
             relationship, and course and scope of employment....The
             Judge of Compensation Claims (JCC) approved the
             settlement and ordered the release of the employer and
             carrier from liability for all workers’ compensation benefits
             with no mention of the minor children.

                                      (A. 3).
                                  (Emphasis Added)

The Court then considered the law concerning election of remedies which was to be

applied to the foregoing facts:

             In Lowery v. Logan, 650 So.2d 653,657 (Fla. 1DCA 1995),
             the First District discussed the doctrine and said:

                   Consistent with the rule of law that the constituted
                   election of remedies a worker ’ compensation
                                                      s
                   remedy must be pursued to a determination or a
                   conclusion on the merits, Florida courts also hold
                   that mere acceptance by a claimant of some
                   compensation benefits i not enough to constitute an
                                          s
                   election. There must be evidence o a conscious
                                                         f
                   intent by the claimant to elect the compensation
                   remedy and to waive his other rights.

             (Emphasis Added). See also: Wishart v. Laidlaw Tree
             Serv., Inc., 573 So.2d 183 (Fla 2DCA 1991); Velez v.
             Oxford Dev. Co., 457 So.2d 1388 (Fla. 3DCA 1984).
             Along the same line, in Velez,this Court approvingly quotes
             from Professor Larsen’s treatise:

                   Mere acceptance of some compensation benefits...is
                   not enough to constitute an election. There must also
                                             4

                                          E .
                                   Two L W P CENTER
   9iso SOUTH UAUEIAND ROWY.EVAKU JAY M.DATRAN A
                   TELEPHONE (306)670-8100   .               UT
                                                            S IE   1701
                                             TELECOPIER (305) 670-0032
                                                                          MIAMI, FL 33156
                    be evidence of conscious intent to elect the
                    compensation remedy and to waive.. .other rights.

             Velez, 457 So.2d at 1390 (quoting 2A A. Larsen,
             Workmen’s Compensation 567.22 (1 976)). We do not
             believe that the record before us supports a finding that
             Hernandez had a conscious intent to elect the compensation
             rule and waive her other rights.. ..This stipulation stated that
             CA contested the compensability of the claim and, along
             with its workers’ compensation insurer, took the position
             that there was no evidence that the accident arose out of
             and in the course and scope of decedent’s employment.
             There was no resolution of the merits of the claim. Even a
             brief review of the facts suggests that CA may well have a
             meritorious defense, Because the worker’s compensation
             remedy was not pursued to a determination or conclusion on
             the merits, there could be no election of remedies. Rather,
             what happened here is that the CA simply opted to “buy” its
             way out of the worker’s compensation litigation by
             expediently (and cheaply) resolving what amounted to little
             more than a nuisance claim.

                                       (A. 6 )
                                  (Emphasis Added)

Thus, the holding of the Third District is that in order for there to be an election of

remedies, there must be a conscious intent to accept the worker’s compensation

remedy. This intent is evidenced by either a finding by the Judge of Compensation

Claims or by agreement of the parties, that the accident occurred within the course and

scope of employment. Since neither of these two events occurred in the case at bar,

Respondent lacked a conscious intent to elect a workers’ compensation remedy.



                                            5

                                    JAY M LEVY,
                                         .        PA
   9180 SOUTH DAIIEIANU l3OUlEVAECD TWO DATFUN CENTER SUITE 1701        MIAMI, FL SS166
                   TELEPHONE (905) 670-8100 TELECOPIER (306) 670-0083
       The opinion rendered by the court below is to be contrasted with the decision

of the Fourth District in Michael v. Centex-Rooney Construction, Co, Inc., 645 So.2d

                                                             ’S
133 (Fla. 4DCA 1994). There the Court quoted the trial C O ~ holding with regard

to the underlying facts

               On May 27,1992, the Judge of Compensation Claims ruled
               that Michael was an independent contractor rather than an
               employee of Regal and further ruled that Michael was not
               entitled to workers’ compensation benefits. Michael
               thereupon undertook an appeal regarding the decision of the
               Judge of Compensation Claims. Subsequently to Michael
               filing an appeal, Michael, Regal and Regal’s workers’
               compensation carrier reached a lump sum settlement on
               Michael’s workers’ compensation claims and submitted a
               Joint Petition dated December 7, 1992, with an attached
               Affidavit from Michael dated December 3, 1992, to the
               Judge of Compensation Claims. Under the terms of Joint
               Petition, Michael agreed to a lump sum settlement of
               Michael’s workers’ compensation claim in the amount of
               $6,500.00 in accordance with Florida Statute
               §440.20( 12)(b). Michael specifically acknowledged in the
               Joint Petition that the lump sum settlement constituted a
               “full and final Discharge” of Regal and its workers’
               compensation carrier’s responsibility for workers’
               compensation benefits.

                                        Id. at 134-135

The Fourth District then applied the following legal proposition to the foregoing facts:

               Where the injured party actively pursues and receives
               worker’s compensation benefits, an election of remedies is
               found. See: Mandico v. Taos Const., Inc., 605 So.2d 850,
               853 (Fla. 1992); Ferraro v. Mum, 490 So.2d 188 (Fla.
               2DCA), rev. denied, 496 So.2d 143 (Fla. 1986). On the

                                               6

                                              E .
                                      JAY M. L W PA.
    9130 SOU’1’I1   DADELAND BOULEVARD TWO D A T W CENTER     SWITe 1701   MIAMI. FL YYlSB
                        TELEPHONE (306) 870-8100 TEUCOPIER (308)870-0033
             other hand, where the injured party does not actively pursue
             such benefits, a factual determination is warranted regarding
             whether the injury was within the scope o f employment.
             See: Wishart v. Laidlaw Tree Ser., Inc., 573 So.2d 183 (Fla.
             2DCA 1991); Velez v. Oxford Dev. Co., 457 So.2d 1388
             (Fla. 3DCA 1984), rev. denied, 467 So.2d 1000 (Fla. 1985).

                                        Id. at 135.

In contrast to the decision rendered below, the opinion in Michael fails to indicate there

was a reservation of all defenses of the Employer and Carrier including

compensability, employer/employee relation, and whether the accident occurred within

the course and scope of employment, in effecting the workers’ compensation

settlement. This was the key fact relied upon the Third District in concluding there had

been no election of remedies. As this factor is not discussed in Michael (nor does the

opinion indicate it was even raised), Michael is not in express conflict with the case

at bar on the same point of law.




                                              7

                                       JAY M.LEVY, P . k
    BlSO SOUTH DADELAND BOULEVARD TWO DATRAN CENTER SUITE 1701             M I A M I , FL 83156
                    TELEPHONE ( Y M ) 670-8100 TELECOPXER (306) 870-0032
                                          V
                                       Conclusion

      This Court should deny the Petition for Review.

                                                        JAY M. LEVY, P.A.
                                                        Attorneys for Respondent
                                                        Two Datran Center
                                                        9 130 South Dadeland Boulevard
                                                        Suite 1701
                                                        Miami, Florida 33 156
                                                        Phone: (305) 670-8 100




                                            V
                                  Certificate of

      I HEREBY CERTIFY that a true and correct copy of the foregoin instrument

was mailed to Sheridan K. Weissenborn, Esquire, PAPY, WEISSENBdRN, POOLE
                                                                              f
& VRASPIR, P.A., 300 1 Ponce De Leon Boulevard, Suite 2 14, Coral Gables, Florida,

33 134, and to Guillermo F. Mascaro, Esquire, LAW OFFICES OF GUILLERMO F.

MASCARO, 2701 LeJeune Road, Coral Gables, Florida, 33134, this 20th day of

March, 2001 *




    9190 SOUTH
                     TELEPHONE (306)
                                    JAY M.LEVY. P A
                 DADELAND BOUIJWARI3 TWO DATRAN CENTER     SUITE 170 L
                                    810-8100 TELECOPIER (806) 870-0032
                                                                         M W I . FL 33168
                                                                                 FILED
                                                                                      D.
                                                                                ~JloMAs HALL
                      IN THE SUPREME COURT OF FLORIDA
                                                                           /  MAR 3 0 2001
                                                                                         coum
                                                                           CLERK, SUPREPVIE
                                                                           BY

                                                  CASE NO: SCOO-2176
                                                  3DCA CASE NO: 3D99-00569

UNITED CONTRACTORS COW,
a/k/a UNITED CONTRACTORS, INC.,

        Petitioner,

vs.                                                       ate of Type Size

MARIA MINERVA HERNANDEZ, as
Personal Representative of the Estate of
Ricardo Arid Hernandez and individually,

        Respondent.
                                                  I

        COMES NOW the Respondent MARIA MINERVA HERNANDEZ, by and

through her undersigned attorneys, and hereby files this her Certificate of Type Size

used in Respondent’s Supplemental Brief on Jurisdiction as follows:

        I.     Respondent’s Supplemental Brief on Jurisdiction was prepared in 14

Point Times New Roman in Word Perfect 6.1 format.

        I HEREBY CERTIFY that a true and correct copy of the foregoing instrument
                                  J’
was mailed to Sheridan K. Weissenborn, Esquire, PAPY, WEISSENBORN, POOLE

& VRASPIR, P.A., 300 1 Ponce De Leon Boulevard, Suite 2 14, Coral Gables, Florida,
                               /
33 134, and to Guillermo F. Mascaro, Esquire, LAW OFFICES OF GUILLERMO F.

                                              1

                                       JAY M.LEVY. P A
      SISO SOUTH UAUEIAND BOULEVARD TWO DATRAN CENTER 9 SUITE! 1701       MIAIMX, FL 33166
                      TELEPHONE (308) 870-8100 TELECOPIEH (301)870-0083
MASCARO, 2701 LeJeune Road, Coral Gables, Florida, 33134, this 29th day of

March, 2001.


                                JAY M. LEVY, P.A.
                                9130 South Dadeland Boulevard
                                Two Datran Center, Suite 1701
                         /      Miami, Florida 33 156
                                Phone: (305) 670-8 100




                                             2

                                  JAY M,LEVY.P.A.
   aiao souw DADYIANLI BOULEVARD    TWO DATRAN CENTER SUITE 1701             MIAMI. FL 3 m i m
                 TELEPHONE (906) R 7 0 - H l 0 0 TELECOPIER ( 0 2 870-0032
                                                             31)

				
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