Tuesday, May 19, 2015

Is it Padgett Time Yet?

Many think that Florida is alone in the debate of exclusive remedy. Not so. Certainly, there is a spirited debate here regarding the "Padgett" case. That matter is still pending in the Third District Court of Appeal (Miami), case number 14-2062. The oral argument was March 30, 2015. No further word since that time according to the online case docket.

There is really no precise methodology for predicting when a decision will come from the Third District. I have previously attempted to provide some parameters for prediction of the currently pending Florida Supreme Court workers' compensation casesCastellanos and Westphal. It is absolutely not a scientific method, but it is the best I have. Essentially, I randomly select a population of recent decisions of a court, and then reference how long ago the oral argument was in each of those cases.

On May 13, 2015, the Third District Court of Appeal rendered 35 opinions/decisions. Most of those were "per curium" decisions, meaning that the orders were brief, rather than long, descriptive explanations. Some were more substantive though. Many of those case dockets evidence no oral argument (OA). The following May 13, 2015 decisions involved an OA (date in parenthesis): 

14-0985 (04.15.15; 28 days to decision)
14-1668 (04.15.15; 28 days)
14-2988 (03.24.15; 50 days)
13-2751 (04.27.15; 16 days)
14-0020 (04.27.15; 16 days)
14-2981 (04.28.15; 15 days)

The average is about 26 days. The oral argument in The State of Florida v. Florida Workers' Advocates (Padgett) was March 30, 2015. Twenty-six days would have been April 25, 2015. Fifty days, commensurate with the decision in 14-2988 (the longest on this list) would be May 19, 2015 (yesterday). 

The Opinions page of the court's website supports that the Third District strives to release opinons on a schedule, each Wednesday. However, archived opinions page suggests that the court may deviate from this schedule, with opinions sometimes issued on other days.  

It is fair to say that there is no way to predict when the Court will issue its decision. It is also fair to say that the decision in this case could issue any day. If you want to keep an eye on the court, check the opinions page

Remember, if the Third District affirms the trial court's conclusion that exclusive remedy is unconstitutional, the Florida Supreme Court will consider the case. If the District Court reverses the trial court, the Florida Supreme Court may still consider the case, but does not have to do so. 

I get a lot of questions about what will happen in Padgett. There is much to consider. At the oral argument, one of the judges asked about Elsa Padgett's employer. The judge noted that when Ms. Padgett became an intervenor (the original parties to that lawsuit had both departed, and Ms. Padgett was allowed to intervene along with Florida Workers' Advocates against the State of Florida, as the nominal defendant), she was asserting her rights to have access to the Florida tort system, that is to avoid the exclusive remedy that protects her employer from the tort system. 

Ms. Padgett's employer, the party whom she would presumably sue if allowed by the trial court's decision, was not a party to that litigation. That employer has not been heard. Some question whether that employer has been afforded any due process in the development of its potential liability in this case. They think that the employer who would be sued if exclusive remedy is stricken should have notice of that potential and an opportunity to be heard regarding the striking of that defense. 

These prognosticators predict that this will be the point upon which this case is decided by the Third District. They say this procedural point resolves the appellate case and allows the court to avoid the deeper constitutional issues that have been raised. They prognosticate reversal on this procedural ground, and predict that the case will be sent back to the trial court. 

That said, I have not heard anyone say that they know how it will come out, though some make predictions like the foregoing. Likewise, we don't know when the Court's decision will be published. However, it seems to me that it could be anytime now. Out of curiosity, I will be watching the Court's website today. 

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