Wednesday, June 24, 2015

It is Padgett Time, Third DCA Reverses

One of the cases upon which the Sate of Florida has focused over the last year has been decided. The Third District Court of Appeal today (June 24, 2015) rendered its REVERSAL of the trial judge in The State of Florida v. Florida Workers' Advocates (Commonly referred to as Padgett).  

Remember last August Judge Cueto, a Circuit Judge in Miami, concluded that the Florida Workers' Compensation exclusive remedy provision is unconstitutional. Details are in "Padgett," or Florida Workers' Advocates," A Rose by Any Other Name. There was a push to have the State's appeal certified directly to the Florida Supreme Court. The Third District denied that request and undertook review, see Now We Know Where Padgett will next be Decided.  

After a long winter, the Third District held oral argument in the case in late March. In May, I wondered, Is it Padgett Time Yet? And I must admit I have thought that there would be a decision literally any day since then. Today is that day. In that post, I recited some prognosticators thoughts that the case would be reversed on more procedural grounds. The discussion centered on whether Ms. Padgett's employer had been afforded due process after she intervened into the originally filed case.  Those prognostications regarding her employer turned out not to figure in the Third District's reasoning. But, similar concerns regarding the State of Florida did. 

The Third District reversed Judge Cueto today and the matter is therefore (likely) headed back to the Miami Circuit Court. I say "likely" because either party may move for the Third District panel (three judges who decided this case) to revisit the opinion, called a "motion for rehearing;" or a party could ask for the entire Third District Court to rehear the case, called a "motion for rehearing in banc." Also, the parties may still seek review by the Florida Supreme Court in this case. 

As described in an earlier post, if the Third District had affirmed Judge Cueto, finding the statute unconstitutional, then the Florida Supreme Court would have been obligated to review the decision. As the Third DCA reversed that conclusion, the Supreme Court still may review the decision, but is not necessarily obligated to do so. 

The District Court considered the State of Florida's appeal of a "final summary judgement determining that section 440.11, Florida Statutes (2014), the 'exclusiveness of liability' provision of the" law "is facially unconstitutional under the United States and Florida Constitutions." That trial order is here. The Court did not address those specific constitutional questions however, and instead concluded that "the threshold requirements for the prosecution of such claims were not met" and reversed the trial court. 

You see, Ms. Padgett and the Florida Workers' Advocates were not originally parties to this case. The case started out as a civil lawsuit by Julio Cortes against Velda Farms. The Court said that it was "transformed by the present appellants and their counsel into a completely different set of claims and parties over the three years which followed." 

Velda Farms defended the workers' compensation case by Mr. Cortes, and denied his claims. Mr. Cortes sued in civil court and alleged that "Velda Farms and its employees were negligent" and that "Velda Farms should be estopped (precluded) from claiming immunity under the Workers' Compensation Law because of the denial of Mr. Cortes's claims by" the employer/carrier. The court notes that "to this point, no party had raised an issue relating to the constitutionality" of exclusive remedy.

In 2012, "Cortes filed an amended complaint" and alleged that "440.09 and 440.11 of the Workers' Compensation Law are facially unconstitutional or are unconstitutional as applied to Mr. Cortes. The distinctions between "facial" and "as applied" constitutional challenges are discussed in Brock is Gone, is Hector next, in the Florida Court, or the U.S. Supreme? Essentially, a facially unconstitutional statute cannot be appropriately applied in any set of circumstances. One that is unconstitutional "as applied" can be constitutionally applied in some circumstances, but a court determines its application in a particular case or situation does not operate constitutionally. 

The Court noted that when the amended complaint was filed, the plaintiffs did not "join the State of Florida as an additional defendant." Thereafter Florida Workers' Advocates (FWA) and the Workers' Injury Law and Advocacy Group (WILG) intervened into the case as "additional plaintiffs." In 2013 "Velda Farms voluntarily dismissed its" immunity defense" and sought dismissal of "claims other than negligence and loss or consortium." Velda contended that the "relief sought by WILG and FWA - had become moot and should be dismissed."

The intervenors (FWA and WILG) contended that Velda could not seek that relief, and "that the Attorney General of Florida was not a party in the case, though it had been mailed the notice of constitutional question" by Cortes. Despite the fact that "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" the intervenors "against the State of Florida." The name of the case, or "caption" was then changed to "In re: An Action for Declaratory Judgement seeking a judgement that s440.11 Fla. Stat. 2003 is invalid." The intervenors were "designated as 'petitioners' and the State of Florida, Office of the Attorney General, as 'respondent'."

Then Elsa Padgett came into the case. She is "an individual workers' compensation claimant in an unrelated matter" against her employer, Miami-Dade County. She sought determination of "whether or not workers' compensation benefits are my exclusive remedy for my on the job injury in light of thee  vact there is no compensation benefit in the law for my loss of wage earning capacity . . .."

The Court notes that throughout, WILG, FWA and Padgett "did not name the State or the Attorney General as a defendant," nor was the State or AG served "with original process." Judge Cueto later entered an order commanding the State to show cause as to why the State had not responded, and concluding that the lack of response was in spite of his conclusion that "the record indicates proper service." The District Court noted that the trial court concluded that the "notice of constitutional challenge" that was sent "is sufficient to align and implead the State of Florida as a defendant." Thus, that the notice was a valid substitute for service of process in the perspective of the trial court. 

Then, just prior to the 2014 workers' compensation conference, Judge Cueto entered "a twenty -page order granting the petitioner's amended motion for summary final judgement," concluding "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.”

The prognostications and discussions that followed covered a multitude of ideas, interpretations and contentions. Was the whole statute unconstitutional? Was exclusive remedy unconstitutional? A Judge from another state, at the 2014 comp conference, asked me if the OJCC would be open for business the following week in light of the Circuit Judge's decision. It, like many of the questions raised, was answered with the standby "I don't know." There was much uncertainty in the air as this trial decision was discussed. The Florida workers' compensation community has been abuzz for ten months. 

The nation has watched also. Professor Burton has mentioned the case more than once. He was one of the witnesses upon whom Judge Cueto relied in his order. Professor Burton also mentioned Padgett recently,at least in terms of the challenges to exclusive remedy generally, in testimony in Illinois related to reform efforts there.  I have heard the case discussed in a multitude of national gatherings, including SAWCA, last fall's IAIABC in Austin, and more. 

The District Court today held that only Velda Farms was "named as a party and duly served." When that defendant dismissed its workers' compensation immunity defense, the issue "became moot, and any further proceedings were an intervenors-only exercise." The Court held that the "Attorney General of Florida was not a party to the case below."

The Court rejected the intervenors' argument that mootness should be excused because the situation presented was "capable of repetition, yet evading review." In its most famous (to lawyers and law students anyway) context, this exception was adopted for the challenge of abortion law cases. In those situations, a pregnant person seeking that procedure, against the constraints of some state or local law, would be virtually precluded from reaching a meaningful appellate review before the child was born (40 week human gestation is longer than the 45 weeks between Judge Cueto's August 13, 2014 order and today's order from the Third District). Thus, there are contexts in which a court will proceed with a determination even when something has caused a mootness issue, but which situation is likely to recur. 

Rejecting the application of this exception in Padgett, the Court noted "workers' 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'." 

The Court also concluded that as "intervenors, Ms. Padgett, WILG, and FWA took the procedural posture of the case as it stood when they were allowed to intervene."  The Court says that the law "does not support some sort of 'piggy-back' standing by an intervenor based exclusively on a predecessor plaintiff's subsequently dismissed claim." Thus, when Velda Farms dropped the exclusivity defense, it was no longer an issue in that case. 

The Court held that the intervenor organizations "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."  Standing is a legal concept that requires a party to have a definite interest in a legal question in order to be allowed to prosecute or defend the issue. There must be some personal harm suffered or threatened upon the party for that party to have "standing." 

Thus, the "trial court lacked a justiciable case or controversy" (the question was moot) and "the intervenor/appellees lacked standing to assert" such case or controversy. Therefore Judge Cueto's order of August 13, 2014 was REVERSED. The case was sent back to Judge Cueto ("remanded") so that he could enter an order "dismissing Count IV of the amended complaint."

There are those who are already saying that this decision vindicates the statute, and that Florida exclusive remedy is "constitutional." That is not what the opinion says. It says that the parties who brought the question (WILG and FWA) did not have the standing to bring it, and that the question was moot when Judge Cueto ruled. Those are procedural decisions. The Third DCA did not address the substance of Judge Cueto's ruling. It did not conclude that exclusive remedy is constitutional. It said that the question was not appropriately before Judge Cueto. 

That answers one of the questions that has been on so many tongues for the last year. The debate on the substance will have to wait for another challenge in another case. The Brock questions were resolved earlier this year. We now await word from the Florida Supreme Court in Westphal and Castellanos. Their decisions are released on Thursdays. Tune in tomorrow to see if it is time for either or both of them. 


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