Thursday, April 20, 2017

An Old War Story about Divorce and Workers' Comp

Remembering a case from years ago, I was representing a very large insurance company. They hired me to draft settlement paperwork regarding a fatality. The injured worker was undoubtedly killed on the job. No one had seen him fall, but several had been on hand when he landed. The only potential legal issue in the case involved the fact that he was wearing a safety harness, appropriately equipped with a cable and clip, and it was completely undamaged. So, there was some discussion of reducing the benefits for failure to use a safety device. But, when it got to me there was a deal. 

The adjuster had already reached a settlement with the workers' spouse, who was known to the employer. The settlement was a reasonable compromise, and all I needed to do was draft the document. Back then all settlements under Section 440.20(11) involved a detailed documentation of everything, called a "Joint Petition." I was almost finished with the documents about a week later when I heard from the adjusted again. It was one of those "huh?" moments when the adjuster explained that he had just heard from the deceased worker's "other spouse" in another state. Houston, we have a problem. 

Wanting to avoid any undue conflict in a sad situation that was surely just an error or misunderstanding, I asked the adjuster to call each spouse and ask for supporting documentation such as marriage license. I was confident that the situation would sort itself soon enough and decided set aside the Joint Petition, for further work after we heard from both (now) alleged spouses. Unfortunately, it was not a mistake. We soon received proof of two marriages, and could uncover no record of any divorces. 

This is the part on the late-night infomercial where the host says "wait, don't order yet." As we contemplated how to deal with the two spouses, the adjuster was contacted by the third spouse. She was a resident of a foreign country, and was contacting the carrier through a consulate in south Florida. upon request, she too provided proof of marriage. And thus, my simple assignment to draft a Joint Petition became an intriguing legal issue and a trial. 

In what way can one sort out entitlement to benefits among three spouses?

In Florida, death benefits are set forth in Section 440.16, Fla. Stat. It provides for benefits "on account of dependency upon the deceased," and sets out an "order of preference." The benefits hierarchy begins with "the spouse, if there is no child," and then provides for the "the spouse if there is a child or children," then to "the child or children," then to "the parents," and finally to "the brothers, sisters and grandchildren." It is a somewhat complex process, described in significant statutory detail. But, it does not have any reference as to what one does when "spouse" turns out to be "spouses."

We hired an investigator to travel to the foreign country. He reported back that marriages there were all recorded a large book, by hand, in a court clerk's office. And, the parties were given a document to memorialize their marriage (we knew that part, as the foreign spouse had sent us that certificate). Divorces, the investigator explained, were recorded in the same book when the divorce was granted. The court issued an order to each person memorializing the divorce, and then the clerk went to the book and page that memorialized the marriage, and put a line through the marriage record to memorialize the divorce. The date and clerk's initials were traditionally written at the end of that line.  

But, the investigator had not procured a copy of that page regarding spouse number 3 (in the order we learned of them, or spouse number 1 in the order of marriage occurring). The investigator did not provide this because, he explained, that page had been torn from the public records book and was therefore unavailable. There was no other legal record of divorce obtainable, because of the passage of time, except from the parties to the divorce. In our case, one of those was deceased and the other would be refuting her own claim if she admitted to a divorce. 

I performed a lot of legal research. A great motto for attorneys is to know the law, prepare fully, and be ready for anything. Good trial attorneys spend significant time preparing. We proceeded to trial, and the whole point was going to be, from my client's perspective, "pick a spouse judge." The carrier wanted to pay the benefits, but could not decide which person was the "legal" spouse. In a rare, small, victory no other claimants contacted us, and thankfully all three women denied there were any children, siblings or parents that were "dependent" in any way. At least there were only three potential dependents. 

After the extensive preparation, and dealing with the inevitable pretrial motions and discovery, we presented for trial before the Honorable Thomas Portuallo. My client's argument was simple in many respects. And, as we drove to the trial my conversation with the adjuster was mostly about which decisional authority might persuade the judge and which spouse would be the most credible. 

But, when we arrived, we found only one spouse present. Only the most recent spouse, married in Florida, had appeared for trial. For whatever reason the other spouses had declined to travel to the trial. Unsurprisingly, the Judge ruled in favor of the spouse that showed up. And despite my urging lawyers to always prepare, to know the fact, and the law, etc., it turns out that sometimes you win because you are the one that shows up. 

With the Judge's order in hand a few weeks later, I finished that Joint Petition and the case was soon settled and closed. As I reflect on various aspects of practicing law, a recurring thought is that no matter what you have seen there is a good chance you have not "seen it all."

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