1 00:00:00,000 --> 00:00:28,000 Good morning, Your Honors, thank you for your support. 2 00:00:28,000 --> 00:00:33,598 My name is Mihaela Cabrilla and I represent Hartford Insurance Company of Southeast, who 3 00:00:33,598 --> 00:00:38,039 is a third-party payer in this case. 4 00:00:38,039 --> 00:00:43,118 This appeal, Your Honors, presents an issue of statutory interpretation that is of first 5 00:00:43,118 --> 00:00:44,118 impression. 6 00:00:44,118 --> 00:00:52,439 Namely, how to interpret the mandatory indemnification subrogation right under the Workers' Compensation 7 00:00:52,439 --> 00:01:00,479 Statute in a way that does not render other provisions in the statute negatory or that 8 00:01:00,479 --> 00:01:03,798 doesn't limit that mandatory recovery right. 9 00:01:03,798 --> 00:01:06,079 Let me ask just an initial question. 10 00:01:06,079 --> 00:01:14,079 The legislature knows the term contractor, subcontractor, and sub-subcontractor, correct? 11 00:01:14,079 --> 00:01:15,079 Yes. 12 00:01:15,079 --> 00:01:21,558 And in this particular statute that is at issue, they don't refer to sub-subcontractors 13 00:01:21,558 --> 00:01:23,439 in terms of the reimbursement. 14 00:01:23,439 --> 00:01:25,439 They just refer to sub-subcontractors, correct? 15 00:01:25,439 --> 00:01:26,439 That's correct. 16 00:01:26,439 --> 00:01:27,439 Okay. 17 00:01:27,439 --> 00:01:32,079 I just want to make sure that we're on the same page as far as what the statute actually 18 00:01:32,079 --> 00:01:33,079 says. 19 00:01:33,079 --> 00:01:34,079 Right. 20 00:01:34,079 --> 00:01:39,638 And I want to, I will refer to the exact language of the statute in a little while. 21 00:01:39,638 --> 00:01:43,400 And I don't think I need to go through the facts of this case because they're very simple 22 00:01:43,400 --> 00:01:44,400 and disputed. 23 00:01:44,400 --> 00:01:48,439 There was a payment made by my client in the amount of. 24 00:01:48,439 --> 00:01:54,079 Well, it's simple if you have a flowchart maybe, but. 25 00:01:54,079 --> 00:02:01,159 My client made the payment in the amount of a little over $1.5 million in workers' compensation. 26 00:02:01,159 --> 00:02:06,400 And that payment was necessary because both the subcontractor in this case. 27 00:02:06,400 --> 00:02:09,038 Because of 1B. 28 00:02:09,038 --> 00:02:13,000 Because of 1B, exactly. 29 00:02:13,000 --> 00:02:17,038 And you're contending that because of 1B, one of your arguments, and I want to make 30 00:02:17,038 --> 00:02:21,000 sure you can let me know which one is your initial argument, your fallback argument. 31 00:02:21,000 --> 00:02:25,879 I have to admit, I got confused, not necessarily because of poor advocacy, but just, but I'm 32 00:02:25,879 --> 00:02:27,960 trying to address all of them in my thinking. 33 00:02:27,960 --> 00:02:32,879 So one of the, the crux of at least one of the arguments, if not both, your primary and 34 00:02:32,879 --> 00:02:40,960 fallback is that B makes all of the employees, employees of everybody essentially for, that's 35 00:02:40,960 --> 00:02:43,080 a crude retelling of it. 36 00:02:43,080 --> 00:02:52,038 But that makes Mr. Oliva, or Oliva, the employee of, um, Structures SPL. 37 00:02:52,038 --> 00:02:53,038 What? 38 00:02:53,038 --> 00:02:54,038 Structures SPL. 39 00:02:54,038 --> 00:02:55,038 Oh, yeah. 40 00:02:55,038 --> 00:02:56,038 And not only enterprise. 41 00:02:56,038 --> 00:03:04,319 Okay, but that, so that would make, then that would mean under D that, and I'll just read 42 00:03:04,319 --> 00:03:10,080 the sentence that D says, if a contractor, that's finish line, becomes liable for the 43 00:03:10,080 --> 00:03:18,439 payment of compensation to Oliva, of a subcontractor, Structures, but then that next phrase is 44 00:03:18,439 --> 00:03:21,038 what might be a problem for your theory. 45 00:03:21,038 --> 00:03:23,118 Who has failed to secure such payment? 46 00:03:23,118 --> 00:03:29,838 It was not Structures' obligation to secure the payment for Oliva. 47 00:03:29,838 --> 00:03:40,879 So I, I could concede that Structures meets part of essentially the definition of, or 48 00:03:40,879 --> 00:03:47,159 constitutes the subsequent term, the subcontractor, meaning that would be liable to the contractor 49 00:03:47,159 --> 00:03:50,758 because everybody's employees are everybody's employees. 50 00:03:50,758 --> 00:03:57,960 So yes, Oliva was Structures' employee and yes, finish line became liable to Oliva. 51 00:03:57,960 --> 00:04:02,080 But what's, how do you account for the other criteria, which is who has failed to secure 52 00:04:02,080 --> 00:04:03,080 such payment? 53 00:04:03,080 --> 00:04:04,080 That doesn't apply to Structures. 54 00:04:04,080 --> 00:04:09,038 Well, your Honor, with all due respect, it does under the privity, under the vertical 55 00:04:09,038 --> 00:04:13,240 privity scheme that the legislature has created. 56 00:04:13,240 --> 00:04:14,240 Where? 57 00:04:14,240 --> 00:04:23,119 B doesn't say, B, B doesn't say that, B doesn't say that Structures has to, you know, get 58 00:04:23,119 --> 00:04:27,040 insurance itself on behalf of its subcontractor's employee. 59 00:04:27,040 --> 00:04:28,040 My apologies. 60 00:04:28,040 --> 00:04:34,559 In other words, if Structure, let me answer this, if Structures, if, if the, you know, 61 00:04:34,559 --> 00:04:42,119 the regulatory investigator for workers' comp comes to the work site and, and Oliva was 62 00:04:42,119 --> 00:04:49,119 not covered, could that, could Structures be liable under 440.38? 63 00:04:49,119 --> 00:04:57,759 Yes, your Honor, because Structures is required, so Oliva became a statutory employee of Structure 64 00:04:57,759 --> 00:05:00,559 SBL under the statutory, the vertical privity scheme. 65 00:05:00,559 --> 00:05:02,040 Under B, under subsection B. 66 00:05:02,040 --> 00:05:04,439 Under subsection B. And if you, if your Honor looks at the- 67 00:05:04,439 --> 00:05:05,439 For what purpose? 68 00:05:05,439 --> 00:05:10,000 I mean, one purpose we could say is the last sentence, the contractor shall be, the contractor, 69 00:05:10,000 --> 00:05:15,920 we could say Structure's the contractor because they have a subcontractor, liable for payment 70 00:05:15,959 --> 00:05:18,519 except to employees that the subcontractor has secured. 71 00:05:18,519 --> 00:05:25,040 So they're liable for what, are they liable for payment for, for injury or are they liable 72 00:05:25,040 --> 00:05:26,040 under 440.38? 73 00:05:26,040 --> 00:05:27,040 They're- 74 00:05:27,040 --> 00:05:28,040 Or is that the same thing? 75 00:05:28,040 --> 00:05:36,040 They're liable to, it's exactly the same thing, they're liable to ensure that they have workers' 76 00:05:36,040 --> 00:05:43,959 compensation for all the employees, all the, including the statutory employees, not only 77 00:05:44,040 --> 00:05:52,439 its own employees, but also those of enterprises because Structure SBL sublet part of its contract 78 00:05:52,439 --> 00:06:00,480 with, with Finish Line to enterprises and that made it a contractor. 79 00:06:00,480 --> 00:06:05,600 If your Honor looks at the Florida Supreme Court that we cited in our brief on page 31, 80 00:06:05,600 --> 00:06:13,838 which is Arthur Collins and Son, the court explained in that case that each subcontractor 81 00:06:13,838 --> 00:06:22,920 who sublets a portion of his contract becomes a contractor for the purpose of securing compensation 82 00:06:22,920 --> 00:06:24,639 for the employees of his subcontractor. 83 00:06:24,639 --> 00:06:29,879 That's between, that makes the subcontractor a contractor. 84 00:06:29,879 --> 00:06:35,199 It doesn't make the primary contractor the contractor. 85 00:06:35,199 --> 00:06:42,238 I understand the vertical responsibilities, but that seems to specify that Structure is 86 00:06:42,238 --> 00:06:45,720 now in the shoes as a contractor, right? 87 00:06:45,720 --> 00:06:46,720 Right. 88 00:06:46,720 --> 00:06:54,838 And Less Enterprises is its subcontractor and Oliva is the employee of that subcontractor. 89 00:06:54,838 --> 00:07:03,199 So going back to the statute, it says if a contractor becomes liable for payment of compensation 90 00:07:03,199 --> 00:07:07,879 to the employees of a subcontractor, the contractor or other third party payer is entitled 91 00:07:07,879 --> 00:07:08,879 to recover. 92 00:07:08,879 --> 00:07:17,678 That, the way the plain language is that Structure is entitled to recover from Less Enterprise 93 00:07:17,678 --> 00:07:24,399 if Structure had made payment to Oliva, but Structure as the contractor didn't. 94 00:07:24,399 --> 00:07:32,358 And so that statute as worded, you're adding language that, and by the way, the general 95 00:07:32,519 --> 00:07:38,519 contractor, the big contractor, they're now standing in the shoes as contractor for Structure 96 00:07:38,519 --> 00:07:44,079 and contractor or subcontractor and being Less Enterprises, when Less Enterprises is 97 00:07:44,079 --> 00:07:45,079 a sub-subcontractor. 98 00:07:45,079 --> 00:07:48,519 The only reason why- 99 00:07:48,519 --> 00:07:53,439 And just so you know, from an intent standpoint, your argument does make some sense. 100 00:07:53,439 --> 00:08:00,238 But as we now know, the Florida Supreme Court and other courts are saying absolute textual 101 00:08:00,278 --> 00:08:02,119 analysis based on the words. 102 00:08:02,119 --> 00:08:07,798 And that's why my first question was, legislature knows how to use the term sub-subcontractor. 103 00:08:07,798 --> 00:08:11,798 And in this reimbursement section of the statute, they don't. 104 00:08:11,798 --> 00:08:12,798 And they could have. 105 00:08:12,798 --> 00:08:20,519 Well, then, in that sense, we could go to our second argument that is narrower. 106 00:08:20,519 --> 00:08:27,160 And the subcontractor vis-a-vis finish line builders and my client, who's the third party 107 00:08:27,160 --> 00:08:34,519 pay or Hartford, then the subcontractor is Structure SBL. 108 00:08:34,519 --> 00:08:36,719 It's not Enterprises. 109 00:08:36,719 --> 00:08:41,719 So then you would have the reimbursement that- 110 00:08:41,719 --> 00:08:44,399 But Oliva wasn't employed by Structure. 111 00:08:44,399 --> 00:08:46,599 But it's a statutory employee. 112 00:08:46,599 --> 00:08:50,759 And that's why Structure SBL is employed. 113 00:08:50,759 --> 00:08:55,239 Under B, Oliva is the employee of Structures as well? 114 00:08:55,239 --> 00:08:56,918 Is that what you're saying in response to- 115 00:08:57,678 --> 00:09:02,678 Yes, because that's the- 116 00:09:02,678 --> 00:09:05,678 Shall be deemed employed in one and the same business or establishment? 117 00:09:05,678 --> 00:09:06,678 Exactly. 118 00:09:06,678 --> 00:09:10,479 Leaving aside that it's possible that that's only for the purpose of the contractor being 119 00:09:10,479 --> 00:09:12,558 liable, not the subcontractor. 120 00:09:12,558 --> 00:09:18,359 But let's say that, again, that goes to my initial question for you then. 121 00:09:18,359 --> 00:09:25,719 Then presuming that is constructively the way that the statute operates, which is to 122 00:09:25,840 --> 00:09:36,200 say that Oliva is not only Enterprises' employee, it's also Structures' employee. 123 00:09:36,200 --> 00:09:42,719 I'm still at a loss to say that Structures is the one who failed to secure a payment 124 00:09:42,719 --> 00:09:46,038 in violation of 440.38. 125 00:09:46,038 --> 00:09:48,558 What does 440.38 say? 126 00:09:48,558 --> 00:09:55,080 It says, every employer shall secure the payment of compensation under this chapter by ensuring 127 00:09:55,558 --> 00:09:59,558 Every employer, including Structures- 128 00:09:59,558 --> 00:10:04,440 Again, so you're going to tell me that- Okay, so could finish line have been in violation 129 00:10:04,440 --> 00:10:10,840 of chapter 440.38 because it's sub, sub, sub, sub, sub, sub, subcontractor didn't carry 130 00:10:10,840 --> 00:10:11,840 workers comp? 131 00:10:11,840 --> 00:10:14,038 And let me tell you what I'm saying. 132 00:10:14,038 --> 00:10:16,440 So maybe I'm right, maybe I'm wrong. 133 00:10:16,440 --> 00:10:19,558 I'm making a distinction between liable. 134 00:10:19,558 --> 00:10:24,200 Yes, finish line is liable for its sub, sub, sub, sub, sub, sub, sub, subcontractor's employee 135 00:10:24,200 --> 00:10:27,840 who gets hurt if its sub, sub, sub, sub, sub, subcontractor doesn't have workers comp. 136 00:10:27,840 --> 00:10:29,918 Yeah, you got to pay out. 137 00:10:29,918 --> 00:10:36,840 But does that mean that there is a requirement under 440.38 if its sub, sub, sub, sub, sub, 138 00:10:36,840 --> 00:10:41,000 subcontractor doesn't carry workers comp for finish line to carry workers comp? 139 00:10:41,000 --> 00:10:42,320 Yes, Your Honor. 140 00:10:42,320 --> 00:10:44,479 Under the statute- Where? 141 00:10:44,479 --> 00:10:56,000 Finish line is required to, under 1A, any contractor or subcontractor who engages in 142 00:10:56,000 --> 00:11:01,119 any public or private construction in the state shall secure and maintain compensation 143 00:11:01,119 --> 00:11:05,200 for his or her employees under this chapter as provided in 440. 144 00:11:05,200 --> 00:11:09,440 Okay, so you're saying that B also applies to that. 145 00:11:09,440 --> 00:11:14,279 So in other words, every general contractor, again, not liability, I get it. 146 00:11:14,279 --> 00:11:18,960 What I, okay, the way I read 1A, you're going to correct me and opposing counsel is going 147 00:11:18,960 --> 00:11:26,080 to correct me back, but if, is that this, this is a liability. 148 00:11:26,080 --> 00:11:30,580 It's not a insurance, it's not a workers comp insurance mandate. 149 00:11:30,580 --> 00:11:32,279 It's a liability provision. 150 00:11:32,279 --> 00:11:39,119 Yeah, finish line's liable to LIBA because it's literally sub, subcontractor. 151 00:11:39,119 --> 00:11:41,879 So the subcontractor should have insured him and he got hurt. 152 00:11:41,879 --> 00:11:47,678 But does that mean that, again, some regulator from the division, Department of Labor, whatever 153 00:11:47,678 --> 00:11:56,158 we call it now, the DEO comes on the side and says, you're in violation of a regulation 154 00:11:56,158 --> 00:12:01,038 that requires you to actually have workers comp insurance for your sub, subcontractor's 155 00:12:01,038 --> 00:12:02,038 employees. 156 00:12:02,038 --> 00:12:03,038 Is that true? 157 00:12:03,038 --> 00:12:08,960 Your Honor, I can't speak as to what happened with another regulatory agency. 158 00:12:09,798 --> 00:12:13,840 I know, but just to clarify, that's what I want to know because that's what I think answers 159 00:12:13,840 --> 00:12:18,719 the question of, of, of this phrase. 160 00:12:18,719 --> 00:12:23,519 Who has failed to secure such payment in violation of 440.38? 161 00:12:23,519 --> 00:12:30,840 Because everybody in, who employs, so basically OLIVA was a statutory employee of structure 162 00:12:30,840 --> 00:12:39,840 SBL and structure SBL and the trial court found that structure SBL failed to secure 163 00:12:39,840 --> 00:12:44,359 workers comp, workers compensation insurance. 164 00:12:44,359 --> 00:12:47,239 And that's why. 165 00:12:47,239 --> 00:12:48,239 For whom? 166 00:12:48,239 --> 00:12:49,840 For its own employees? 167 00:12:49,840 --> 00:12:50,840 For all the employees. 168 00:12:50,840 --> 00:12:52,840 No, you said, you said the trial court. 169 00:12:52,840 --> 00:12:58,840 Well, that's because structure SBL becomes a contractor vis-a-vis enterprises, right? 170 00:12:59,840 --> 00:13:00,840 Back up for a second. 171 00:13:00,840 --> 00:13:01,840 Just, sorry. 172 00:13:01,840 --> 00:13:02,840 I just want to clarify. 173 00:13:02,840 --> 00:13:07,320 You said the trial court found that structures had failed to provide workers compensation 174 00:13:07,320 --> 00:13:09,840 to OLIVA, insurance to OLIVA? 175 00:13:09,840 --> 00:13:10,840 Right. 176 00:13:10,840 --> 00:13:18,239 Because it didn't carry workers compensation, either precision or structure SBL. 177 00:13:18,239 --> 00:13:19,239 That's why. 178 00:13:19,239 --> 00:13:26,840 Why would structures workers compensation insurance, insurance policy cover enterprises employees? 179 00:13:26,840 --> 00:13:27,840 Because. 180 00:13:27,840 --> 00:13:28,840 Why would it? 181 00:13:28,840 --> 00:13:29,840 Because. 182 00:13:29,840 --> 00:13:30,840 Would it? 183 00:13:30,840 --> 00:13:33,840 Because structure SBL became a contractor. 184 00:13:33,840 --> 00:13:38,840 Would structures insurance policy cover OLIVA if it had one? 185 00:13:38,840 --> 00:13:39,840 Yes. 186 00:13:39,840 --> 00:13:40,840 It should. 187 00:13:40,840 --> 00:13:42,840 I mean, it should have covered if it had one. 188 00:13:42,840 --> 00:13:43,840 It didn't have one. 189 00:13:43,840 --> 00:13:47,840 So the subcontractor is supposed to actually carry a policy for enterprises? 190 00:13:47,840 --> 00:13:49,840 Yes, your honor. 191 00:13:49,840 --> 00:13:56,840 Because the subcontractor, the subcontractor, what it did here, it sublet part of its contract 192 00:13:56,840 --> 00:13:58,840 to enterprises. 193 00:13:58,840 --> 00:14:05,840 So the first thing that happened is finish line sublet part of its contract to structure 194 00:14:05,840 --> 00:14:06,840 SBL. 195 00:14:06,840 --> 00:14:11,840 And then the next thing that happened, part of that contract that was sublet to structure 196 00:14:11,840 --> 00:14:16,840 SBL, structure SBL went on and sublet to precision. 197 00:14:16,840 --> 00:14:22,840 And now structure SBL becomes a contractor vis-a-vis precision. 198 00:14:23,840 --> 00:14:31,840 And that's why it's obligated to have insurance to cover the statutory employees of, that 199 00:14:31,840 --> 00:14:33,840 becomes statutory employees of structure SBL. 200 00:14:33,840 --> 00:14:34,840 What support do you have for that? 201 00:14:34,840 --> 00:14:35,840 I understand that it becomes liable. 202 00:14:35,840 --> 00:14:43,840 I understand, I can buy that structures is liable for OLIVAs to pay for OLIVAs injuries 203 00:14:44,840 --> 00:14:55,840 because enterprises did not have insurance compensation. 204 00:14:55,840 --> 00:14:57,840 Neither enterprises nor structure SBL. 205 00:14:57,840 --> 00:14:59,840 And I wanted to point out... 206 00:14:59,840 --> 00:15:04,840 that the appellee did not cross-appeal that determination 207 00:15:05,680 --> 00:15:08,820 that basically it was a subcontractor 208 00:15:08,820 --> 00:15:13,820 and it had the obligation to carry insurance 209 00:15:14,100 --> 00:15:16,940 and because it didn't carry insurance 210 00:15:16,940 --> 00:15:18,740 and Precision didn't carry insurance, 211 00:15:18,740 --> 00:15:19,580 that's when the judge- 212 00:15:19,580 --> 00:15:22,960 Again, what was its obligation to carry insurance 213 00:15:22,960 --> 00:15:24,500 for its own employees, right? 214 00:15:25,479 --> 00:15:30,479 But the employees of the sub and the subcontractor 215 00:15:30,559 --> 00:15:33,639 are considered to be employed by the same- 216 00:15:33,639 --> 00:15:34,459 For what purpose? 217 00:15:34,459 --> 00:15:36,119 For the purpose of carrying insurance for them 218 00:15:36,119 --> 00:15:38,019 or for the purpose of liability 219 00:15:38,019 --> 00:15:40,560 in case your subcontractor doesn't have 220 00:15:40,560 --> 00:15:42,920 workers' comp insurance for its employees? 221 00:15:42,920 --> 00:15:44,759 That's two separate things, isn't it? 222 00:15:45,680 --> 00:15:49,519 Yes and no in the sense that if you don't carry insurance, 223 00:15:49,519 --> 00:15:52,639 how are you gonna be able to- 224 00:15:52,660 --> 00:15:55,700 Pay out-of-pocket, get sued and pay that way. 225 00:15:55,700 --> 00:15:57,979 Well, that's the very problem why we are here. 226 00:15:57,979 --> 00:16:00,220 Perhaps some of the subcontractors 227 00:16:00,220 --> 00:16:02,060 cannot pay out-of-pocket if they- 228 00:16:02,060 --> 00:16:03,180 Well, but that's the difference 229 00:16:03,180 --> 00:16:04,660 whether it's a good business practice 230 00:16:04,660 --> 00:16:06,660 to be self-insured for that purpose 231 00:16:06,660 --> 00:16:09,979 or carry a larger, I don't even know if that exists, 232 00:16:09,979 --> 00:16:12,740 a policy to cover your subcontractor's employees 233 00:16:12,740 --> 00:16:15,779 under workers' comp is a different question 234 00:16:15,779 --> 00:16:20,779 than whether the Chapter 440 requires by virtue of 1B, 235 00:16:21,759 --> 00:16:24,200 which seems to me to be in a liability provision, 236 00:16:24,200 --> 00:16:26,560 not a insurance mandate provision. 237 00:16:26,560 --> 00:16:29,240 Ms. Kabulia, before you answer that, 238 00:16:29,240 --> 00:16:31,160 you didn't ask to reserve time for rebuttal. 239 00:16:31,160 --> 00:16:33,359 You're at four minutes, so I don't know. 240 00:16:33,359 --> 00:16:34,399 You can answer that question, 241 00:16:34,399 --> 00:16:36,279 but if you wanna reserve any time for rebuttal- 242 00:16:36,279 --> 00:16:38,200 I would like to reserve some time for rebuttal. 243 00:16:38,200 --> 00:16:39,038 You can answer that question. 244 00:16:39,038 --> 00:16:42,399 May I say one thing that I wanted to say? 245 00:16:42,399 --> 00:16:45,759 Even under the narrower construction, 246 00:16:45,759 --> 00:16:50,759 it should still be the structure SPS, 247 00:16:51,240 --> 00:16:56,240 who's liable to, I mean, who should reimburse my client, 248 00:16:58,000 --> 00:17:01,479 and then structure SBL could go after precision 249 00:17:01,479 --> 00:17:06,479 because the subcontractor vis-a-vis the Hartford, 250 00:17:06,600 --> 00:17:10,318 my client, is structure SBL, 251 00:17:10,318 --> 00:17:12,720 not the sub-subcontractor precision, 252 00:17:12,720 --> 00:17:14,200 and I'll reserve my time. 253 00:17:14,200 --> 00:17:15,038 Very good, thank you. 254 00:17:15,038 --> 00:17:16,160 You'll have four minutes. 255 00:17:21,779 --> 00:17:23,440 Good morning, everyone. 256 00:17:23,440 --> 00:17:24,519 Good morning. 257 00:17:24,519 --> 00:17:26,440 May it please the court, Ronald J. Israel 258 00:17:26,440 --> 00:17:28,959 from the firm of Israel Ponzoli, 259 00:17:28,959 --> 00:17:31,860 on behalf of the Apolli Structure SBL. 260 00:17:31,860 --> 00:17:34,399 We appreciate you hearing us today. 261 00:17:34,399 --> 00:17:36,360 Your honors, this case should be affirmed 262 00:17:36,360 --> 00:17:38,038 for one straightforward reason. 263 00:17:38,038 --> 00:17:40,759 The statute is broken down into three different subparts, 264 00:17:40,759 --> 00:17:42,920 and each one has its own function. 265 00:17:42,920 --> 00:17:44,840 The first part, the 440, 266 00:17:45,840 --> 00:17:49,399 the part that we're talking about today is 440.10.1.D.1. 267 00:17:49,399 --> 00:17:51,059 I'm gonna say D all day today 268 00:17:51,059 --> 00:17:52,619 because it's just the way I do it, 269 00:17:52,619 --> 00:17:56,299 but in section D, it creates the reimbursement remedy 270 00:17:57,160 --> 00:18:00,299 for the contractor, whatever contractor it is 271 00:18:00,299 --> 00:18:05,179 that ends up paying, has a reimbursement right against the, 272 00:18:05,179 --> 00:18:07,818 the word the in quotes, subcontractor 273 00:18:07,818 --> 00:18:10,818 whose failure caused the payment, 274 00:18:10,818 --> 00:18:13,420 and in this case, the lower court properly found 275 00:18:13,420 --> 00:18:17,538 that the subcontractor whose failure caused the payment 276 00:18:17,538 --> 00:18:22,538 by a contractor, doesn't say which one, was Enterprises, 277 00:18:22,759 --> 00:18:26,079 and Enterprises rightfully got judgment. 278 00:18:26,079 --> 00:18:30,440 1B, what it does, and they focused all of their argument 279 00:18:30,440 --> 00:18:34,759 on 1B, 1B is the vertical privity and the immunity statute. 280 00:18:34,759 --> 00:18:37,318 That tells us why Hartford paid. 281 00:18:37,318 --> 00:18:39,679 The law makes finish line builders 282 00:18:39,679 --> 00:18:44,459 as the general contractor ultimately 100% responsible 283 00:18:44,459 --> 00:18:47,220 for the provision of workers' comp on its site 284 00:18:47,878 --> 00:18:49,000 and it can do that in two ways. 285 00:18:49,000 --> 00:18:52,720 It can carry its own policy, or it can ensure 286 00:18:52,720 --> 00:18:54,598 that every subcontractor that steps 287 00:18:54,598 --> 00:18:57,920 on that site has appropriate coverage, 288 00:18:57,920 --> 00:19:00,878 and in the instances where they don't, 289 00:19:00,878 --> 00:19:02,720 the statute's very clear. 290 00:19:02,720 --> 00:19:05,360 The subcontractor who failed to secure privilege 291 00:19:05,360 --> 00:19:08,440 for its employees, it doesn't say statutory employees, 292 00:19:08,440 --> 00:19:10,840 it doesn't say anyone in the vertical chain, 293 00:19:10,840 --> 00:19:12,878 it doesn't say up and down the chain, 294 00:19:12,878 --> 00:19:14,878 it doesn't say any of these words, 295 00:19:14,878 --> 00:19:17,340 and that's Hartford's interpretation today. 296 00:19:17,340 --> 00:19:20,739 They want the court to expand the structure 297 00:19:20,739 --> 00:19:25,019 of what it means, and it's just simply not there. 298 00:19:25,019 --> 00:19:28,459 Can you answer my question that I posed to opposing counsel, 299 00:19:28,459 --> 00:19:30,019 and I wanna invite you to tell me 300 00:19:30,019 --> 00:19:31,559 that my question was misguided, 301 00:19:31,559 --> 00:19:33,459 even though it seemed probably ostensibly 302 00:19:33,459 --> 00:19:36,880 to be one that would favor you. 303 00:19:38,599 --> 00:19:41,539 Am I misguided in focusing on the phrase 304 00:19:41,539 --> 00:19:43,500 who has failed to secure such payment 305 00:19:43,519 --> 00:19:46,759 in violation of section 40.38? 306 00:19:46,759 --> 00:19:48,559 What does that mean? 307 00:19:48,559 --> 00:19:50,599 Absolutely, you're right, that's the whole case. 308 00:19:50,599 --> 00:19:54,078 Does that mean secure insurance? 309 00:19:54,078 --> 00:19:58,000 Who failed to secure compensation coverage, payment. 310 00:19:58,000 --> 00:20:00,759 In this case, Hartford paid out a lot of money, 311 00:20:00,759 --> 00:20:02,639 and they're saying, we wanna get it back, 312 00:20:02,639 --> 00:20:04,798 and the question is, under 1D, 313 00:20:04,798 --> 00:20:06,380 who do they get it back from? 314 00:20:06,380 --> 00:20:09,000 What if you had, think about it this way, your honors, 315 00:20:09,000 --> 00:20:12,000 what if you had 15 sub, sub, sub, sub contractors, 316 00:20:12,000 --> 00:20:15,380 and someone down the line doesn't have coverage? 317 00:20:15,380 --> 00:20:17,899 The statute doesn't say it goes back up the chain 318 00:20:17,899 --> 00:20:21,099 to the next guy, it says the contractor 319 00:20:21,099 --> 00:20:24,419 who failed to secure coverage for its employee, 320 00:20:24,419 --> 00:20:25,899 and that's right in the statute. 321 00:20:25,899 --> 00:20:28,179 And then there's, but the opposing party is saying 322 00:20:28,179 --> 00:20:33,179 that the, it is, I keep my S's incorrect, 323 00:20:35,459 --> 00:20:37,500 structures as employee. 324 00:20:37,500 --> 00:20:38,340 Okay. 325 00:20:38,340 --> 00:20:40,459 That does say, shall be deemed to be employed 326 00:20:40,459 --> 00:20:41,899 in one and the same business. 327 00:20:42,679 --> 00:20:44,720 I don't have any arguments with 1B. 328 00:20:44,720 --> 00:20:48,199 1B is the vertical privity and immunity statute, 329 00:20:48,199 --> 00:20:50,440 and what that does is she is correct, 330 00:20:50,440 --> 00:20:54,019 it makes everybody a statutory employer. 331 00:20:54,019 --> 00:20:56,199 Okay, and it does, and that's, remember that word. 332 00:20:56,199 --> 00:20:58,259 If that's the case, then why isn't, 333 00:20:59,320 --> 00:21:03,980 why wasn't structures required to secure payment for Oliva? 334 00:21:05,119 --> 00:21:10,078 Because the statute puts the burden, again, 335 00:21:10,099 --> 00:21:12,179 because the statute, let me read it to you. 336 00:21:12,179 --> 00:21:14,358 Sorry, let me just get exactly here. 337 00:21:16,119 --> 00:21:17,320 All right. 338 00:21:17,320 --> 00:21:20,660 Okay, so in B, it says, and the contractor, 339 00:21:20,660 --> 00:21:22,539 meaning the general contractor, is liable for, 340 00:21:22,539 --> 00:21:24,459 shall secure the payment of compensation 341 00:21:24,459 --> 00:21:27,279 to all such employees, except to the employees 342 00:21:27,279 --> 00:21:30,459 of a subcontractor who has secured such payment. 343 00:21:30,459 --> 00:21:34,220 It makes the general contractor ultimately responsible, 344 00:21:34,220 --> 00:21:37,340 except whether it's a subcontractor who has coverage. 345 00:21:37,340 --> 00:21:39,619 And the Supreme Court of Florida's already addressed this. 346 00:21:40,119 --> 00:21:42,480 It's in the Fidelity versus Arthur Collins case. 347 00:21:42,480 --> 00:21:44,899 They actually cite it, thinking it helps them, 348 00:21:44,899 --> 00:21:48,380 but it actually illustrates what happened here. 349 00:21:48,380 --> 00:21:51,480 In that case, you had a contractor, 350 00:21:51,480 --> 00:21:54,440 a sub, and a sub-subcontractor. 351 00:21:54,440 --> 00:21:56,399 But in that case, the same thing, 352 00:21:56,399 --> 00:22:00,039 the sub-subcontractor failed to have coverage, 353 00:22:00,039 --> 00:22:02,559 and then the commission came back and said, 354 00:22:02,559 --> 00:22:04,679 well, we're gonna make it both. 355 00:22:04,679 --> 00:22:06,199 But the statute doesn't say both. 356 00:22:06,199 --> 00:22:08,759 It says the subcontractor who failed 357 00:22:08,759 --> 00:22:11,298 gets the responsibility. 358 00:22:11,298 --> 00:22:15,699 And the case cites a Pennsylvania case, the Quall case, 359 00:22:15,699 --> 00:22:19,940 which talks about that the contractor shall be liable 360 00:22:19,940 --> 00:22:23,820 and shall secure, except for when they have been secured. 361 00:22:23,820 --> 00:22:27,259 And it says it's to protect employees, 362 00:22:27,259 --> 00:22:29,099 and it's ultimately the contractor 363 00:22:29,099 --> 00:22:32,858 who has to provide compensation liability across the board, 364 00:22:32,858 --> 00:22:34,699 and he can do that in his subcontracts. 365 00:22:34,699 --> 00:22:38,099 And if he doesn't, if he doesn't require that, 366 00:22:38,160 --> 00:22:42,279 the statute makes him liable under 1B for coverage. 367 00:22:42,279 --> 00:22:44,959 So again, what they want you to add, 368 00:22:44,959 --> 00:22:46,959 they want you to change the statute to say 369 00:22:46,959 --> 00:22:50,679 if the contractor becomes liable to the employees, 370 00:22:50,679 --> 00:22:53,519 or they want you to say the statutory employees 371 00:22:53,519 --> 00:22:55,759 of a subcontractor, and they wanna say, 372 00:22:56,840 --> 00:22:58,599 then it puts the statutory modifier. 373 00:22:58,599 --> 00:23:02,720 The subcontractor who has failed to secure such payment. 374 00:23:02,720 --> 00:23:04,959 They wanna say any subcontractor 375 00:23:04,959 --> 00:23:06,880 who failed to secure such payment. 376 00:23:06,880 --> 00:23:09,619 Anyone in the chain who failed. 377 00:23:09,619 --> 00:23:11,660 Because there could be 15 subcontractors. 378 00:23:11,660 --> 00:23:14,259 Our case, luckily, is a little simpler than that. 379 00:23:14,259 --> 00:23:16,739 But the statute says exactly what it says. 380 00:23:16,739 --> 00:23:19,019 We're not asking for a narrow interpretation. 381 00:23:19,019 --> 00:23:21,578 We're asking for a harmonious interpretation 382 00:23:21,578 --> 00:23:24,619 where each section is given its proper due. 383 00:23:24,619 --> 00:23:28,179 The better reading of the statute is 1B protects the worker 384 00:23:28,179 --> 00:23:30,619 and places ultimate payment responsibility 385 00:23:30,619 --> 00:23:31,860 on the general contractor. 386 00:23:31,860 --> 00:23:33,660 It says that in all the cases. 387 00:23:33,660 --> 00:23:36,300 And that responsibility is also outlined 388 00:23:36,639 --> 00:23:37,840 in the case law, it's also in our brief. 389 00:23:37,840 --> 00:23:40,840 But in Arthur Collins' case, I'm looking at it here. 390 00:23:40,840 --> 00:23:44,480 I mean, didn't the Florida Supreme Court say 391 00:23:44,480 --> 00:23:47,878 that the person in your spot, the subcontractor, 392 00:23:47,878 --> 00:23:50,840 had a duty to have insurance? 393 00:23:50,840 --> 00:23:52,480 In that case, they do. 394 00:23:52,480 --> 00:23:55,199 And there is a factual dispute. 395 00:23:55,199 --> 00:23:57,480 It doesn't affect your ruling today. 396 00:23:57,480 --> 00:24:00,160 It does not affect affirmance or reversal, 397 00:24:00,160 --> 00:24:02,039 if that's the case. 398 00:24:02,039 --> 00:24:05,079 The factual dispute is whether SBL had any employees 399 00:24:05,099 --> 00:24:07,660 in Florida and had to have coverage anyway. 400 00:24:07,660 --> 00:24:09,539 The facts, and it's cited in our brief, 401 00:24:09,539 --> 00:24:10,939 it's addressed briefly. 402 00:24:10,939 --> 00:24:13,378 Because they not only asked for reversal, 403 00:24:13,378 --> 00:24:15,300 they asked for a reversal. 404 00:24:15,300 --> 00:24:18,220 But Oliva is a statutory employee of SBL. 405 00:24:19,660 --> 00:24:22,740 And your client signed a contract 406 00:24:22,740 --> 00:24:24,800 that would require actual services 407 00:24:24,800 --> 00:24:26,340 on that construction site, 408 00:24:26,340 --> 00:24:29,099 and then you just sublet it away, right? 409 00:24:29,099 --> 00:24:30,579 Exactly, that is correct. 410 00:24:30,579 --> 00:24:33,898 And the factual issues that prohibited them 411 00:24:33,920 --> 00:24:35,199 from getting summary judgment 412 00:24:35,199 --> 00:24:37,259 are the waiver and estoppel issues. 413 00:24:37,259 --> 00:24:42,119 Because the insurance certificates were unsigned, 414 00:24:42,119 --> 00:24:44,840 the contract addendum requiring comp, 415 00:24:44,840 --> 00:24:47,639 because it's argued, again, this is a factual dispute, 416 00:24:47,639 --> 00:24:49,599 which really is not before us today, 417 00:24:49,599 --> 00:24:51,439 but it was argued that they knew SBL 418 00:24:51,439 --> 00:24:53,119 was putting someone else on the site. 419 00:24:53,119 --> 00:24:57,639 SBL never stepped foot in Florida on the job site. 420 00:24:57,639 --> 00:25:01,519 An independent project manager came down from Canada once, 421 00:25:01,539 --> 00:25:04,898 not related to us, by virtue of employment. 422 00:25:04,898 --> 00:25:07,139 And again, Structure SBL's employees 423 00:25:07,139 --> 00:25:09,059 are covered in Canada under CNIST, 424 00:25:09,059 --> 00:25:10,818 which is also put forward in our brief. 425 00:25:10,818 --> 00:25:11,898 So there's a factual dispute 426 00:25:11,898 --> 00:25:14,099 whether we had to have coverage anyway. 427 00:25:14,099 --> 00:25:18,300 The contract's unsigned on the comp insurance pages, 428 00:25:18,300 --> 00:25:21,378 and the certificate that Structure SBL provided 429 00:25:21,378 --> 00:25:23,259 to finish line builders to get this job 430 00:25:23,259 --> 00:25:24,660 showed it had no workers' comp, 431 00:25:24,660 --> 00:25:27,619 and finish line proceeded anyway. 432 00:25:27,619 --> 00:25:30,740 And what the law does when a contractor 433 00:25:31,740 --> 00:25:35,939 accepts a subcontractor that doesn't have coverage, 434 00:25:35,939 --> 00:25:38,459 they automatically, under 440, 435 00:25:38,459 --> 00:25:41,439 they take responsibility for those comp coverage 436 00:25:41,439 --> 00:25:43,420 for all the employees down the chain. 437 00:25:43,420 --> 00:25:48,420 But your client, as the contractor for the other company, 438 00:25:50,420 --> 00:25:53,099 it would have accepted that same liability, right? 439 00:25:53,099 --> 00:25:58,099 It would have except if we stand in the shoes 440 00:25:58,619 --> 00:26:00,780 of the word contractor now, right, 441 00:26:00,780 --> 00:26:03,800 as vis-a-vis enterprises. 442 00:26:03,800 --> 00:26:05,599 Then the statute's even more clear. 443 00:26:05,599 --> 00:26:08,559 The subcontractor who failed to secure coverage, 444 00:26:08,559 --> 00:26:10,480 in this case, is enterprises. 445 00:26:10,480 --> 00:26:12,878 No matter which road you go down, 446 00:26:12,878 --> 00:26:15,840 the contractor, whether I call him a subcontractor. 447 00:26:15,840 --> 00:26:18,398 Your position is that even though 448 00:26:19,860 --> 00:26:22,980 your client could be deemed a contractor 449 00:26:22,980 --> 00:26:25,999 in one circumstance, it doesn't change the nature 450 00:26:25,999 --> 00:26:29,999 of the relationship between it and the general contractor. 451 00:26:29,999 --> 00:26:34,999 It does not, and it also doesn't collapse 1B and 1D into one. 452 00:26:35,898 --> 00:26:36,898 You can't do that. 453 00:26:36,898 --> 00:26:38,300 That's not what happens. 454 00:26:38,300 --> 00:26:41,220 They are separate and distinct statutes. 455 00:26:41,220 --> 00:26:43,180 I'm sorry, separate and distinct provisions. 456 00:26:43,180 --> 00:26:46,259 And you can't erase the statutory modifier 457 00:26:46,259 --> 00:26:50,378 is the employee's, you've secured payment, 458 00:26:50,378 --> 00:26:51,499 and let me just read it for you again, 459 00:26:51,499 --> 00:26:52,999 because it's really important. 460 00:26:57,019 --> 00:26:59,340 To the employee of a subcontractor, 461 00:26:59,680 --> 00:27:02,160 the employee in this case we know is Aleeva, 462 00:27:02,160 --> 00:27:07,160 the subcontractor we know is enterprises, 463 00:27:07,160 --> 00:27:08,639 I'm sorry to get their name wrong, 464 00:27:08,639 --> 00:27:11,759 who has failed to secure such payment. 465 00:27:11,759 --> 00:27:14,079 Every way you read it, whether we're the contractor 466 00:27:14,079 --> 00:27:15,160 or the subcontractor. 467 00:27:15,160 --> 00:27:18,079 Bozengas was saying, though, that the obligations 468 00:27:18,079 --> 00:27:22,519 of 440.38 apply up the chain by virtue of B. 469 00:27:22,519 --> 00:27:27,398 In other words, that A sub, there's two phrases, right? 470 00:27:27,398 --> 00:27:30,860 Two phrases, A subcontractor and the subcontractor. 471 00:27:31,818 --> 00:27:33,860 Finish line wants the subcontractor 472 00:27:33,860 --> 00:27:38,619 to be able to be applied to structures. 473 00:27:40,818 --> 00:27:41,920 She'll correct me if I'm wrong, 474 00:27:41,920 --> 00:27:44,059 but her argument is that that phrase, 475 00:27:44,059 --> 00:27:45,898 who has failed to secure such payment violation 476 00:27:45,898 --> 00:27:50,059 of 440.38 applies equally to structures and enterprises 477 00:27:50,059 --> 00:27:55,059 because Oliva is just as much substances as, 478 00:27:55,160 --> 00:27:59,039 I mean, structures employee as it is enterprises 479 00:27:59,039 --> 00:28:00,599 by virtue of section B. 480 00:28:00,599 --> 00:28:03,160 Again, I don't quibble with 440.38 481 00:28:03,160 --> 00:28:04,999 and I don't quibble with 1B at all. 482 00:28:04,999 --> 00:28:07,039 It does, there is a privity scheme, 483 00:28:07,039 --> 00:28:09,559 there is a statutory employer scheme. 484 00:28:09,559 --> 00:28:11,079 I don't have any problem with that. 485 00:28:11,079 --> 00:28:12,398 What I have a problem with 486 00:28:12,398 --> 00:28:15,199 and what the trial court correctly did 487 00:28:15,199 --> 00:28:18,240 is the statute, no matter which way you read it, 488 00:28:18,240 --> 00:28:19,759 whether you call us the contractor 489 00:28:19,759 --> 00:28:23,039 for the purposes of the sub-subcontract, 490 00:28:23,579 --> 00:28:27,259 the statute is very clear on, not on the liability, 491 00:28:27,259 --> 00:28:28,920 the liability is part B, 492 00:28:28,920 --> 00:28:32,459 but on the recovery of benefits paid 493 00:28:32,459 --> 00:28:36,300 and the right to is against the employer 494 00:28:36,300 --> 00:28:38,139 who employed someone in the state. 495 00:28:38,139 --> 00:28:39,300 That's Oliva. 496 00:28:39,300 --> 00:28:40,459 It doesn't say employer. 497 00:28:40,459 --> 00:28:43,099 It says, I take your meaning. 498 00:28:43,099 --> 00:28:47,220 It means someone who is the employer for the employee, 499 00:28:47,220 --> 00:28:51,220 but by B, according to subsection B, 500 00:28:51,240 --> 00:28:54,079 structures is the employer of Oliva. 501 00:28:54,079 --> 00:28:55,800 It doesn't say statutory though. 502 00:28:55,800 --> 00:28:57,079 There's a difference. 503 00:28:57,079 --> 00:29:00,039 If the legislature wanted it to say statutory employee 504 00:29:00,039 --> 00:29:02,079 or anyone in the chain, it could have said that. 505 00:29:02,079 --> 00:29:03,318 So it could have said. 506 00:29:03,318 --> 00:29:04,840 But it's the same statute. 507 00:29:05,999 --> 00:29:08,039 In a case of contractor sublets, 508 00:29:08,039 --> 00:29:10,759 all the employees of such contractor, subcontractor, 509 00:29:10,759 --> 00:29:13,119 subcontractors engaged in such work 510 00:29:13,119 --> 00:29:15,079 shall be deemed to be employed 511 00:29:15,079 --> 00:29:17,720 in one and the same business or establishment. 512 00:29:17,720 --> 00:29:18,780 Agreed. 513 00:29:18,780 --> 00:29:19,619 Okay. 514 00:29:20,079 --> 00:29:21,480 Again, I don't quibble with that. 515 00:29:21,480 --> 00:29:24,360 It's simple, a plain reading of this statute 516 00:29:24,360 --> 00:29:26,840 says it's directing exactly. 517 00:29:26,840 --> 00:29:29,519 It says a contractor becomes- 518 00:29:29,519 --> 00:29:30,360 That's my point is this. 519 00:29:30,360 --> 00:29:32,318 We can quibble about what that means, 520 00:29:32,318 --> 00:29:33,840 but for you to say, 521 00:29:33,840 --> 00:29:37,840 well, subsection D needs to say statutory employee. 522 00:29:39,398 --> 00:29:42,439 I don't, I can be ambivalent 523 00:29:42,439 --> 00:29:44,360 about what B means when it says that, 524 00:29:44,360 --> 00:29:46,639 but I'm not, I don't think, 525 00:29:47,099 --> 00:29:52,099 you can use B to aid your interpretation of D 526 00:29:54,259 --> 00:29:56,939 even though employee doesn't say statutory 527 00:29:56,939 --> 00:29:59,619 because D, B talks about what employees. 528 00:29:59,619 --> 00:30:02,099 I agree that you can read them in concert, 529 00:30:02,099 --> 00:30:04,259 and you should read them in concert. 530 00:30:04,259 --> 00:30:07,299 But again, the statute's very pointed in this section. 531 00:30:07,299 --> 00:30:09,139 And it says the subcontractor who 532 00:30:09,139 --> 00:30:10,579 failed to secure such payment. 533 00:30:10,579 --> 00:30:11,500 And the subcontractor. 534 00:30:11,500 --> 00:30:13,899 So now we're back to my other question, which 535 00:30:13,899 --> 00:30:17,859 is, can it be argued that Structures failed 536 00:30:17,859 --> 00:30:21,299 to secure payment in violation of 443-8, 537 00:30:21,299 --> 00:30:26,979 given that under subsection B, Oliva is its employee as well? 538 00:30:26,979 --> 00:30:28,379 They've made that argument. 539 00:30:28,379 --> 00:30:29,779 The court rejected it. 540 00:30:29,779 --> 00:30:32,819 I know, I'm asking you whether we should reject it. 541 00:30:32,819 --> 00:30:35,699 Oh, no, no, you should reject that argument. 542 00:30:35,699 --> 00:30:38,339 There's factual disputes on whether SBI had that. 543 00:30:38,339 --> 00:30:40,839 No, no, no, I don't want to know about the factual disputes 544 00:30:40,839 --> 00:30:43,019 about whether, unless I'm starting to cut you off, 545 00:30:43,019 --> 00:30:46,619 whether Structures actually has employees itself. 546 00:30:46,619 --> 00:30:48,258 Sure. 547 00:30:48,258 --> 00:30:49,500 I'm not talking about that. 548 00:30:49,500 --> 00:30:50,459 OK. 549 00:30:50,459 --> 00:30:55,258 I'm talking about whether, by virtue of Oliva 550 00:30:55,258 --> 00:31:02,418 being, by operation of statute, Structures' employee 551 00:31:02,418 --> 00:31:07,858 in subsection B, why can't it be concluded 552 00:31:07,858 --> 00:31:11,299 that Structures failed to secure such payment, 553 00:31:11,299 --> 00:31:16,858 meaning whatever it's obligated under 440-38 to provide 554 00:31:16,858 --> 00:31:18,379 for Oliva? 555 00:31:18,379 --> 00:31:21,779 It's because it would create full stream chaos. 556 00:31:21,779 --> 00:31:23,739 No, I want to know textually. 557 00:31:23,739 --> 00:31:24,979 OK. 558 00:31:25,858 --> 00:31:28,458 The D is very specific. 559 00:31:28,458 --> 00:31:30,659 It's the employees of the subcontractor 560 00:31:30,659 --> 00:31:32,898 who failed to secure coverage. 561 00:31:32,898 --> 00:31:34,979 And again, you can't just repeat the question. 562 00:31:34,979 --> 00:31:36,258 No, no, no, I'm just reading. 563 00:31:36,258 --> 00:31:37,299 I'm reading. 564 00:31:37,299 --> 00:31:37,979 I apologize. 565 00:31:37,979 --> 00:31:39,479 Maybe I misunderstood your question. 566 00:31:39,479 --> 00:31:41,858 I'm trying to read from the statute to answer it. 567 00:31:41,858 --> 00:31:42,379 OK. 568 00:31:42,379 --> 00:31:47,138 That the first part talks about contractor B 569 00:31:47,138 --> 00:31:48,699 and the privity thing. 570 00:31:48,699 --> 00:31:51,818 The second part talks about who has to reimburse 571 00:31:51,818 --> 00:31:54,659 if a contractor gets hit. 572 00:31:55,379 --> 00:31:57,818 And the Collins case, in that case, 573 00:31:57,818 --> 00:32:01,339 because both the contractor and the subcontractor 574 00:32:01,339 --> 00:32:04,779 have coverage, they said that the first guy that 575 00:32:04,779 --> 00:32:06,458 has coverage pays. 576 00:32:06,458 --> 00:32:10,619 But in that case, I would argue that in the Collins case, 577 00:32:10,619 --> 00:32:13,939 if the second first-tier subcontractor didn't have it, 578 00:32:13,939 --> 00:32:16,098 the contractor would have had to pay. 579 00:32:16,098 --> 00:32:19,419 And then he still has to go after the subcontractor whose 580 00:32:19,419 --> 00:32:21,298 actual employee it was, because it doesn't 581 00:32:21,298 --> 00:32:22,818 say the word statutory. 582 00:32:22,818 --> 00:32:24,098 Let me ask you. 583 00:32:24,098 --> 00:32:26,980 This goes to this whole textual analysis. 584 00:32:26,980 --> 00:32:32,779 Subparagraph or paragraph 1B in 44010 585 00:32:32,779 --> 00:32:39,779 has been interpreted to provide for vertical responsibility. 586 00:32:39,779 --> 00:32:45,098 But the wording in that statute talks about, 587 00:32:45,098 --> 00:32:46,779 to use the other side's argument, 588 00:32:46,779 --> 00:32:52,339 that if SBL is now treated as the contractor, 589 00:32:52,339 --> 00:32:57,818 then Hartford, absent the interpretation of case law, 590 00:32:57,818 --> 00:33:01,980 shouldn't have been responsible to pay. 591 00:33:01,980 --> 00:33:04,059 Well, the case law and the statute 592 00:33:04,059 --> 00:33:06,139 absolutely makes the finish line builders 593 00:33:06,139 --> 00:33:09,298 and Hartford, your third-party payer, ultimately responsible. 594 00:33:09,298 --> 00:33:11,738 How does Bede make that? 595 00:33:11,738 --> 00:33:14,980 It's because it says, if the contractor sublets, 596 00:33:14,980 --> 00:33:18,419 he's responsible, except to the employees of a sub who 597 00:33:18,419 --> 00:33:19,738 has secured some payment. 598 00:33:19,779 --> 00:33:23,738 But the other side's argument is that SBL now 599 00:33:23,738 --> 00:33:27,298 becomes a statutory contractor. 600 00:33:27,298 --> 00:33:31,098 And so if it is a statutory contractor, 601 00:33:31,098 --> 00:33:34,738 then Hartford's responsibility isn't 602 00:33:34,738 --> 00:33:40,818 to that statutory contractor and all of its subcontractors, 603 00:33:40,818 --> 00:33:43,500 but for case law that says, yes, it is. 604 00:33:43,500 --> 00:33:47,538 And so how do you reconcile that interpretation, 605 00:33:47,538 --> 00:33:50,658 that there is vertical privity? 606 00:33:50,658 --> 00:33:55,178 And yet, why wouldn't that same analysis apply to D? 607 00:33:55,178 --> 00:33:58,259 Because it doesn't say jointly and severally liable. 608 00:33:58,259 --> 00:34:00,339 They've already received a judgment. 609 00:34:00,339 --> 00:34:02,579 But B doesn't. 610 00:34:02,579 --> 00:34:05,639 There seems to me an intellectual leap 611 00:34:05,639 --> 00:34:10,378 in vertical privity, because the statute says what it says. 612 00:34:10,378 --> 00:34:16,739 And so if the primary is who precision? 613 00:34:16,739 --> 00:34:17,578 No, finish line. 614 00:34:17,578 --> 00:34:18,819 Finish line. 615 00:34:18,819 --> 00:34:22,259 So if finish line is a contractor, 616 00:34:22,259 --> 00:34:25,059 and now there is a subcontractor who is converted 617 00:34:25,059 --> 00:34:31,139 into being a contractor, what does that make finish line? 618 00:34:31,139 --> 00:34:32,179 A supercontractor. 619 00:34:32,179 --> 00:34:33,340 It's the general contractor. 620 00:34:33,340 --> 00:34:34,739 They're still the contractor. 621 00:34:34,739 --> 00:34:38,458 But I guess this is maybe not a very articulate way 622 00:34:38,458 --> 00:34:40,099 to address this issue. 623 00:34:40,099 --> 00:34:45,659 But the interpretation of B has been, yep, it goes up the chain. 624 00:34:45,659 --> 00:34:47,619 And you, as the general contractor, 625 00:34:47,619 --> 00:34:50,699 are ultimately responsible no matter what. 626 00:34:50,699 --> 00:34:55,259 But that's not how the actual practice works in this case, 627 00:34:55,259 --> 00:34:59,458 because you have SBL being a contractor, which 628 00:34:59,458 --> 00:35:03,539 should mean, if we take the strict textual wording, 629 00:35:03,539 --> 00:35:08,380 then Hartford, who ensures finish line, 630 00:35:08,380 --> 00:35:10,699 shouldn't be liable. 631 00:35:10,699 --> 00:35:12,940 This is more speculative, because we've 632 00:35:12,940 --> 00:35:14,978 gotten into this textual analysis. 633 00:35:14,978 --> 00:35:20,819 And so I have some difficulty reconciling B and D 634 00:35:20,819 --> 00:35:22,819 and why they should be treated differently. 635 00:35:22,819 --> 00:35:26,978 It's the statutory modifier, the word the subcontractor, 636 00:35:26,978 --> 00:35:30,259 who failed to secure coverage for its employee. 637 00:35:30,259 --> 00:35:33,779 And in this case, Oliva was the observed employee. 638 00:35:33,779 --> 00:35:36,779 Its direct employer was Enterprises, 639 00:35:36,779 --> 00:35:38,219 and they failed to secure coverage. 640 00:35:38,219 --> 00:35:39,259 You said direct employer. 641 00:35:39,259 --> 00:35:40,539 You said its employee. 642 00:35:40,539 --> 00:35:42,619 But when you go back to it, it's like clarifying. 643 00:35:42,659 --> 00:35:46,699 Let me ask you to hopefully not, I 644 00:35:46,699 --> 00:35:49,018 don't want him to ignore your question. 645 00:35:49,018 --> 00:35:51,059 My question is inconsistent with how 646 00:35:51,059 --> 00:35:53,539 the law is interpreted, the statutes, 647 00:35:53,539 --> 00:35:55,898 as far as the vertical. 648 00:35:55,898 --> 00:35:57,179 I think it works well. 649 00:35:57,179 --> 00:36:00,059 I mean, I think 1B gets coverage to the employee. 650 00:36:00,059 --> 00:36:02,179 That was the public policy of 1B. 651 00:36:02,179 --> 00:36:03,500 It makes everybody. 652 00:36:03,500 --> 00:36:05,940 But that's not how the wording seems to be. 653 00:36:05,940 --> 00:36:09,018 That's not how the wording seems to be if she is correct 654 00:36:09,018 --> 00:36:12,179 that SBL is now the contractor. 655 00:36:12,219 --> 00:36:14,099 Again, for argument's sake, even if that's 656 00:36:14,099 --> 00:36:16,500 the case, which I don't concede that's exactly the case, 657 00:36:16,500 --> 00:36:18,578 under 1D, I'm not conceding that. 658 00:36:18,578 --> 00:36:20,578 What I am saying is even if that's the case, 659 00:36:20,578 --> 00:36:23,018 then the subcontractor who failed to secure coverage 660 00:36:23,018 --> 00:36:25,539 for its employee is still Enterprises. 661 00:36:25,539 --> 00:36:27,819 And they have received their statutory remedy. 662 00:36:27,819 --> 00:36:29,380 They just don't like it because they 663 00:36:29,380 --> 00:36:32,219 think that that particular entity is not collectible. 664 00:36:32,219 --> 00:36:35,139 So believe it or not, this does have something to do 665 00:36:35,139 --> 00:36:37,219 with Judge Zilberman's question. 666 00:36:37,219 --> 00:36:39,619 So it's curious. 667 00:36:40,578 --> 00:36:43,340 I agree with Judge Zilberman that it could 668 00:36:43,340 --> 00:36:45,380 be interpreted in multiple ways. 669 00:36:45,380 --> 00:36:45,898 Maybe. 670 00:36:45,898 --> 00:36:48,259 But it's curious that it works the way it does. 671 00:36:48,259 --> 00:36:51,779 But I think it works the way it does for this reason. 672 00:36:51,779 --> 00:36:56,059 The interpretation is as it is for this reason. 673 00:36:56,059 --> 00:37:00,298 All the employees are Hartford's employees under subsection B. 674 00:37:00,298 --> 00:37:00,978 Right? 675 00:37:00,978 --> 00:37:04,139 That's the mechanism that makes not Hartford, whatever, 676 00:37:04,139 --> 00:37:05,619 not the insurer, but finish line. 677 00:37:05,619 --> 00:37:07,898 Right? 678 00:37:07,898 --> 00:37:08,418 OK. 679 00:37:08,418 --> 00:37:11,139 So that may not satisfy Judge Zilberman's question 680 00:37:11,139 --> 00:37:13,099 about why it's curiously interpreted this way. 681 00:37:13,099 --> 00:37:15,018 But that's the interpretive mechanism. 682 00:37:15,018 --> 00:37:15,518 Right? 683 00:37:15,518 --> 00:37:16,018 Yeah. 684 00:37:16,018 --> 00:37:19,458 So why does that also not apply to Structures? 685 00:37:19,458 --> 00:37:22,578 All the employees are Structures employees as well 686 00:37:22,578 --> 00:37:25,819 if Structures is a contractor for its subcontractor 687 00:37:25,819 --> 00:37:26,340 Enterprises. 688 00:37:26,340 --> 00:37:29,578 Because D specifically says it's the subcontractor who 689 00:37:29,578 --> 00:37:30,819 failed to secure coverage. 690 00:37:30,819 --> 00:37:32,340 And if it wanted to say. 691 00:37:32,340 --> 00:37:32,978 Let me ask you. 692 00:37:32,978 --> 00:37:35,340 So why did both of them fail to secure coverage? 693 00:37:35,340 --> 00:37:36,858 The legislature, if they wanted to. 694 00:37:36,858 --> 00:37:40,018 It's a subcontractor who failed to secure coverage. 695 00:37:40,018 --> 00:37:41,978 It says the subcontractor. 696 00:37:41,978 --> 00:37:45,699 Employee of a subcontractor who has failed to secure coverage. 697 00:37:45,699 --> 00:37:48,739 And then it shall be entitled to recover from the subcontractor. 698 00:37:48,739 --> 00:37:49,539 Exactly. 699 00:37:49,539 --> 00:37:50,539 Because I know it says a. 700 00:37:50,539 --> 00:37:52,858 There's only one subcontractor who employed someone 701 00:37:52,858 --> 00:37:56,539 in Florida that failed to secure coverage. 702 00:37:56,539 --> 00:37:59,078 I'm still trying to get you to address that argument saying, 703 00:37:59,078 --> 00:38:01,619 well, couldn't it be that Structures also 704 00:38:01,619 --> 00:38:04,659 failed to secure such payment of I-4430. 705 00:38:04,659 --> 00:38:08,898 If by virtue of subsection B, finish line 706 00:38:08,898 --> 00:38:10,898 is the employer of everybody down the line, 707 00:38:10,898 --> 00:38:13,659 why isn't Structure also the employer of everyone 708 00:38:13,659 --> 00:38:14,940 down the line from it? 709 00:38:14,940 --> 00:38:17,739 And why isn't Structure? 710 00:38:17,739 --> 00:38:18,578 I have my answer. 711 00:38:18,578 --> 00:38:19,500 And I gave it earlier. 712 00:38:19,500 --> 00:38:20,699 But that's why I opened. 713 00:38:20,699 --> 00:38:22,500 You don't like my answer, apparently. 714 00:38:22,500 --> 00:38:24,500 No, I hear what you're saying. 715 00:38:24,500 --> 00:38:27,898 And I think you can twist the statute to that meeting. 716 00:38:27,898 --> 00:38:28,659 I think you can. 717 00:38:28,659 --> 00:38:31,179 But the legislature knew what they were doing. 718 00:38:31,179 --> 00:38:33,380 And if they wanted liability reimbursement. 719 00:38:33,380 --> 00:38:34,940 So let me ask you my question again, 720 00:38:34,940 --> 00:38:36,338 because you don't like my answer. 721 00:38:36,338 --> 00:38:39,460 And maybe it's because I wasn't clear. 722 00:38:39,460 --> 00:38:41,019 And that is probably the case. 723 00:38:41,019 --> 00:38:43,019 It's probably because I wasn't clear. 724 00:38:43,019 --> 00:38:45,899 I'll just be more direct than I was with opposing counsel. 725 00:38:50,899 --> 00:38:57,139 Does either Structures or finish line under 440.3, 726 00:38:57,139 --> 00:38:58,619 are they not liable? 727 00:38:58,619 --> 00:39:03,778 I understand 1B is a liability provision. 728 00:39:03,778 --> 00:39:08,259 But as far as an insurance mandate, 729 00:39:08,259 --> 00:39:12,059 does 443.8 mandate that if enterprises 730 00:39:12,059 --> 00:39:15,899 doesn't have workers' comp insurance for Eliva, 731 00:39:15,899 --> 00:39:18,418 that finish line is supposed to? 732 00:39:18,418 --> 00:39:22,658 If finish line, and I'm sorry, if Structure SBL 733 00:39:22,658 --> 00:39:26,179 was doing business in Florida and had employees in Florida, 734 00:39:26,179 --> 00:39:28,538 it would be required to have workers' comp. 735 00:39:29,538 --> 00:39:30,038 OK. 736 00:39:30,038 --> 00:39:32,219 Structures, that's the factual issue 737 00:39:32,219 --> 00:39:33,338 that I don't want to care. 738 00:39:33,338 --> 00:39:35,978 Hypothetically, we're not conceding 739 00:39:35,978 --> 00:39:40,418 for the sake of discussion that Structures is subject to 443.8. 740 00:39:40,418 --> 00:39:45,259 Was it required to insure Mr. Eliva? 741 00:39:45,259 --> 00:39:46,739 Basically, no. 742 00:39:46,739 --> 00:39:49,059 Enterprises was required to insure Mr. Eliva. 743 00:39:49,059 --> 00:39:50,460 It's employee, and that's 1D. 744 00:39:50,460 --> 00:39:51,579 That's what it's all about. 745 00:39:51,579 --> 00:39:52,079 OK. 746 00:39:52,079 --> 00:39:52,579 OK. 747 00:39:52,579 --> 00:39:53,579 I just want to be clear. 748 00:39:53,579 --> 00:39:55,739 So it's not required to insure him. 749 00:39:55,739 --> 00:39:59,658 It's just liable if it's the contractor, if he gets hurt, 750 00:39:59,658 --> 00:40:02,259 and it's subcontractor doesn't hold workers' comp insurance. 751 00:40:02,259 --> 00:40:02,759 Exactly. 752 00:40:02,759 --> 00:40:03,259 OK. 753 00:40:03,259 --> 00:40:04,219 So we're clear on that. 754 00:40:04,219 --> 00:40:08,338 So that means finish line, also under 443.8, 755 00:40:08,338 --> 00:40:10,619 we're presuming finish line, and let's just 756 00:40:10,619 --> 00:40:14,899 say Structures is in Nebraska and not Canada or whatever. 757 00:40:14,899 --> 00:40:19,019 Under 443.8, neither finish line nor Structures 758 00:40:19,019 --> 00:40:21,579 is required under an insurance mandate 759 00:40:21,579 --> 00:40:24,579 to carry workers' comp insurance for its sub or sub, 760 00:40:24,579 --> 00:40:27,219 sub, sub, or sub, sub, sub contractors' employees, right? 761 00:40:27,219 --> 00:40:30,699 Mr. Benzoli, I'm going to let you answer that question. 762 00:40:30,699 --> 00:40:32,858 I've let you go over by about three minutes, 763 00:40:32,858 --> 00:40:36,059 and this is an interesting case with a lot of complexity. 764 00:40:36,059 --> 00:40:37,019 It is a lot of twists. 765 00:40:37,019 --> 00:40:38,219 And so I don't want to work. 766 00:40:38,219 --> 00:40:39,778 I'm not going to cut Judge Atkinson off 767 00:40:39,778 --> 00:40:40,179 if he has a follow-up. 768 00:40:40,179 --> 00:40:41,259 I'm going to answer the question. 769 00:40:41,259 --> 00:40:42,639 I'm going to answer the question. 770 00:40:42,639 --> 00:40:44,179 I just don't want to forget it. 771 00:40:44,179 --> 00:40:48,259 The issue is, oh, Lord, I just almost forgot it. 772 00:40:48,259 --> 00:40:49,460 No. 773 00:40:49,819 --> 00:40:57,099 The issue is that 1D takes care of that. 774 00:40:57,099 --> 00:40:59,978 Wherever you are, 443.8 says if you're 775 00:40:59,978 --> 00:41:01,418 going to do business in the state, 776 00:41:01,418 --> 00:41:04,418 you have to have a workers' compensation coverage. 777 00:41:04,418 --> 00:41:05,819 That's one statute. 778 00:41:05,819 --> 00:41:06,699 Fantastic. 779 00:41:06,699 --> 00:41:07,858 I agree with that statute. 780 00:41:07,858 --> 00:41:09,059 We all agree. 781 00:41:09,059 --> 00:41:13,099 Then the next thing you come over here is 440 takes care of it. 782 00:41:13,099 --> 00:41:18,500 It makes the primary contractor ultimately 783 00:41:18,500 --> 00:41:21,579 responsible for coverage of every person that 784 00:41:21,579 --> 00:41:23,219 steps foot on that site. 785 00:41:23,219 --> 00:41:27,699 And it's his duty under 1C to collect insurance certificates 786 00:41:27,699 --> 00:41:29,739 from everybody who are going to step on the site. 787 00:41:29,739 --> 00:41:32,259 And if he fails in that duty, he becomes responsible. 788 00:41:32,259 --> 00:41:33,658 And that's what the statute says, 789 00:41:33,658 --> 00:41:34,978 and that's what happened here. 790 00:41:34,978 --> 00:41:36,380 And that's exactly what happened. 791 00:41:36,380 --> 00:41:38,019 So all of these work together. 792 00:41:38,019 --> 00:41:40,298 It's a very simple process. 793 00:41:40,298 --> 00:41:43,259 443.8, I have no qualms with it. 794 00:41:43,259 --> 00:41:44,019 I don't. 795 00:41:44,019 --> 00:41:47,658 But the part we're missing, and it's 796 00:41:47,658 --> 00:41:49,819 set forth in the Collins case, I'm sorry, 797 00:41:49,819 --> 00:41:52,139 the fidelity of the Collins case, 798 00:41:52,139 --> 00:41:55,338 is the contractor is ultimately responsible under 443. 799 00:41:55,338 --> 00:41:56,179 That's it. 800 00:41:56,179 --> 00:41:57,778 So with that, I thank you. 801 00:41:57,778 --> 00:41:59,858 I'd ask the court to affirm the ruling. 802 00:41:59,858 --> 00:42:00,380 Very good. 803 00:42:00,380 --> 00:42:01,219 Thank you very much. 804 00:42:01,219 --> 00:42:03,778 Thank you, Judge. 805 00:42:03,778 --> 00:42:05,899 Counsel, you had four minutes reserved. 806 00:42:05,899 --> 00:42:07,940 But opposing counsel got a couple extra minutes, 807 00:42:07,940 --> 00:42:09,380 so you will have it as well. 808 00:42:09,380 --> 00:42:10,460 Thank you so much, Aaron. 809 00:42:10,460 --> 00:42:12,259 I really appreciate it, especially because 810 00:42:12,259 --> 00:42:14,579 of the heated debate here. 811 00:42:14,619 --> 00:42:16,778 And I wanted to start, before I forget, 812 00:42:16,778 --> 00:42:19,579 with directing the court's attention to some 813 00:42:19,579 --> 00:42:24,099 of our sites in the reply brief that clearly demonstrate 814 00:42:24,099 --> 00:42:26,940 we don't have any factual issue about the fact 815 00:42:26,940 --> 00:42:31,538 that Structure SBL had employees in Florida, 816 00:42:31,538 --> 00:42:33,179 had three employees. 817 00:42:33,179 --> 00:42:35,978 They didn't file for any exception 818 00:42:35,978 --> 00:42:38,739 that either of them are kind of management that shouldn't 819 00:42:38,739 --> 00:42:41,538 be considered employees. 820 00:42:41,538 --> 00:42:45,778 One of them had site visits to Florida. 821 00:42:45,778 --> 00:42:49,500 Two of them, they argued there's some independent contractor. 822 00:42:49,500 --> 00:42:51,978 But that particular person, I believe 823 00:42:51,978 --> 00:42:57,619 it was Mr. Fortier or Mr. Rancourt, either one of them, 824 00:42:57,619 --> 00:43:03,619 had even an email with Structure SBL domain in it. 825 00:43:03,619 --> 00:43:07,179 And it's page one and two of our reply brief. 826 00:43:07,179 --> 00:43:15,298 So this idea that we have a foreign entity who's not even 827 00:43:15,298 --> 00:43:16,940 present in Florida is completely wrong. 828 00:43:16,940 --> 00:43:18,440 Does that really matter to the discussion 829 00:43:18,440 --> 00:43:19,579 that we've been having? 830 00:43:19,579 --> 00:43:23,059 Well, it matters to the point, I apologize. 831 00:43:23,059 --> 00:43:25,059 I should have let you finish the question, 832 00:43:25,059 --> 00:43:26,940 but I only have four minutes. 833 00:43:26,940 --> 00:43:29,460 OK, well, does it really matter to the question? 834 00:43:29,460 --> 00:43:33,460 Because the employees of, I think it's Precision, 835 00:43:33,460 --> 00:43:36,460 now I've gotten confused on the names of the three entities 836 00:43:36,460 --> 00:43:36,940 here. 837 00:43:36,940 --> 00:43:37,739 Enterprises. 838 00:43:37,739 --> 00:43:39,460 Enterprises, enterprises, sorry. 839 00:43:39,460 --> 00:43:47,139 Enterprises, Structure is the statutory employee for them. 840 00:43:47,139 --> 00:43:49,139 So does it really matter if they actually 841 00:43:49,139 --> 00:43:51,219 have people here or not? 842 00:43:51,219 --> 00:43:53,179 It matters. 843 00:43:53,179 --> 00:43:57,940 They're required to get workers' compensation 844 00:43:57,940 --> 00:44:01,658 for their own employers and for all the employers. 845 00:44:01,658 --> 00:44:04,739 That brings me back to my hobby horse. 846 00:44:04,739 --> 00:44:05,239 Sorry? 847 00:44:05,239 --> 00:44:07,559 That brings me back to my hobby horse. 848 00:44:07,559 --> 00:44:11,278 Structure is required to have a policy for whom? 849 00:44:11,278 --> 00:44:13,880 For the employees. 850 00:44:13,880 --> 00:44:15,440 For its employees, right? 851 00:44:15,440 --> 00:44:18,639 Its and the subcontractor. 852 00:44:18,639 --> 00:44:19,139 Where? 853 00:44:19,139 --> 00:44:20,559 Where does it say that? 854 00:44:20,559 --> 00:44:21,399 Well, because. 855 00:44:21,399 --> 00:44:22,918 Now, I'm not saying it's not liable. 856 00:44:22,918 --> 00:44:25,358 I agree that it's liable if Enterprises doesn't have 857 00:44:25,358 --> 00:44:28,000 workers' comp for Mr. Oliva. 858 00:44:28,000 --> 00:44:29,079 Any contractor. 859 00:44:29,079 --> 00:44:32,158 The closing statement of opposing counsel 860 00:44:32,239 --> 00:44:38,119 is that C makes the contractor responsible 861 00:44:38,119 --> 00:44:40,239 if the subcontractor doesn't have insurance. 862 00:44:40,239 --> 00:44:41,559 But what does responsible mean? 863 00:44:41,559 --> 00:44:43,038 Does it have to insure them? 864 00:44:43,038 --> 00:44:46,639 Or does it just have to pay out if he gets injured? 865 00:44:46,639 --> 00:44:49,319 I mean, it should be responsible. 866 00:44:49,319 --> 00:44:49,819 It doesn't. 867 00:44:49,819 --> 00:44:52,478 It says contractors shall require a subcontractor 868 00:44:52,478 --> 00:44:54,199 provide insurance. 869 00:44:54,199 --> 00:44:57,079 It doesn't say, if not, you've got to have a policy for them. 870 00:44:57,079 --> 00:44:57,918 It says. 871 00:44:57,918 --> 00:45:01,038 It just says you're liable if they don't have it. 872 00:45:01,038 --> 00:45:03,078 Abbott, you've got to pay for that guy's injury. 873 00:45:03,078 --> 00:45:05,558 No, but it does say in section 1A 874 00:45:05,558 --> 00:45:09,318 that any contractor or subcontractor who 875 00:45:09,318 --> 00:45:11,758 engages in public or private construction in the state 876 00:45:11,758 --> 00:45:13,878 shall secure and maintain compensation 877 00:45:13,878 --> 00:45:16,718 for his or her employees under this chapter. 878 00:45:16,718 --> 00:45:18,558 So you were saying that Structures 879 00:45:18,558 --> 00:45:22,318 needs to have which employees should be covered 880 00:45:22,318 --> 00:45:23,398 under Structures policy? 881 00:45:26,638 --> 00:45:28,917 All the employees that are considered 882 00:45:28,917 --> 00:45:30,158 employees of disabled. 883 00:45:30,158 --> 00:45:31,238 You're going back to that. 884 00:45:31,238 --> 00:45:36,797 So B means you're contending that if the Department 885 00:45:36,797 --> 00:45:39,598 of Economic Opportunity walked onto the site 886 00:45:39,598 --> 00:45:42,758 and they'd say you're in regulatory noncompliance 887 00:45:42,758 --> 00:45:44,518 because you should have had a policy that 888 00:45:44,518 --> 00:45:47,398 covered your subcontractor's employees. 889 00:45:47,398 --> 00:45:50,038 Under 440.3. 890 00:45:50,038 --> 00:45:52,598 I don't want to speak for the department, Your Honor, 891 00:45:52,598 --> 00:45:55,637 because I wasn't thinking about that issue. 892 00:45:55,637 --> 00:45:58,157 But I want to point out that we are not asking this court 893 00:45:58,157 --> 00:45:59,878 to rewrite the statute. 894 00:45:59,918 --> 00:46:03,358 We're just asking the court to read it harmoniously, 895 00:46:03,358 --> 00:46:08,518 that this subsection D1 with subsection B, 896 00:46:08,518 --> 00:46:14,677 because reading it like that not only gives effect 897 00:46:14,677 --> 00:46:20,358 to the mandatory right to recover, 898 00:46:20,358 --> 00:46:23,758 but it also doesn't render other provisions 899 00:46:23,758 --> 00:46:25,758 in the statute negatory. 900 00:46:25,758 --> 00:46:28,798 The way that the trial court interpreted it 901 00:46:28,798 --> 00:46:32,718 is very narrow to apply, and there's no support for that. 902 00:46:32,718 --> 00:46:36,557 I want to point out to the court that subsection D does not 903 00:46:36,557 --> 00:46:40,438 say if the general contractor becomes liable. 904 00:46:40,438 --> 00:46:43,877 It says if a contractor becomes liable. 905 00:46:43,877 --> 00:46:47,758 So our argument is here we have a contractor 906 00:46:47,758 --> 00:46:52,957 who became liable, which is Structure SPL. 907 00:46:52,957 --> 00:46:55,597 I get confused about all these names as well. 908 00:46:55,597 --> 00:47:02,237 Structure SPL becomes liable for Mr. Oliva's injuries, 909 00:47:02,237 --> 00:47:06,038 doesn't have workers' comp, and is not on the hook. 910 00:47:06,038 --> 00:47:09,077 Then what is the meaning of having the vertical ribbon? 911 00:47:09,077 --> 00:47:10,517 Let me ask you that. 912 00:47:10,517 --> 00:47:13,478 Wait a minute, if you say the first instance 913 00:47:13,478 --> 00:47:15,118 of the word contractor in subsection D, 914 00:47:15,118 --> 00:47:17,758 you're saying that's structures. 915 00:47:17,758 --> 00:47:21,077 So you're saying structures is liable to structures? 916 00:47:21,077 --> 00:47:23,998 Because it says if a contractor becomes liable, 917 00:47:23,998 --> 00:47:26,437 then the contractor shall be entitled to recover 918 00:47:26,437 --> 00:47:28,157 from its subcontractor. 919 00:47:28,157 --> 00:47:29,278 That's enterprises. 920 00:47:29,278 --> 00:47:30,237 Exactly. 921 00:47:30,237 --> 00:47:34,398 So how does that make finish line structures 922 00:47:34,398 --> 00:47:35,517 liable to finish line? 923 00:47:35,517 --> 00:47:39,478 Because neither Structure SPL nor enterprises 924 00:47:39,478 --> 00:47:42,278 had workers' comp, and neither paid. 925 00:47:42,278 --> 00:47:46,877 So automatically under the statute, 926 00:47:46,877 --> 00:47:49,597 Hartford became liable as third-party payor 927 00:47:49,597 --> 00:47:52,437 for finish line to pay workers' comp, 928 00:47:52,437 --> 00:47:55,797 because that was the only insured entity. 929 00:47:55,797 --> 00:47:58,998 The general contractor was the only one insured. 930 00:47:58,998 --> 00:48:04,317 And by interpreting it the way the trial court did, 931 00:48:04,317 --> 00:48:10,278 this entire vertical privity has no meaning. 932 00:48:10,278 --> 00:48:13,797 If somebody like Structure SPL can come into Florida 933 00:48:13,797 --> 00:48:17,597 from Canada, not insure its own employees 934 00:48:17,597 --> 00:48:21,437 and that of its subcontractors, and then 935 00:48:21,437 --> 00:48:26,597 get away without reimbursing, the right under D1 936 00:48:26,597 --> 00:48:29,118 is a mandatory reimbursement right. 937 00:48:29,118 --> 00:48:33,038 But the trial court interpreted the statute in such a way 938 00:48:33,038 --> 00:48:35,437 that it limits that right. 939 00:48:35,437 --> 00:48:41,358 And now it's limited to only enterprises. 940 00:48:41,358 --> 00:48:44,398 But it's Structure SPL as well who failed. 941 00:48:44,398 --> 00:48:47,198 And this is our broader interpretation. 942 00:48:47,198 --> 00:48:50,317 But under our narrower interpretation, 943 00:48:50,317 --> 00:48:54,918 we should still go to the meaning of the statute 944 00:48:54,918 --> 00:48:59,478 and look at the fact that the contractor in this case 945 00:48:59,478 --> 00:49:01,838 would be, let's say, general contractor has 946 00:49:01,838 --> 00:49:07,077 to pay because none of the subcontractor or sub-sub paid 947 00:49:07,077 --> 00:49:11,157 should be able to recover from the subcontractor. 948 00:49:11,157 --> 00:49:17,759 Who's the subcontractor relative to finish line? 949 00:49:17,759 --> 00:49:20,437 It's Structure SPL. 950 00:49:20,437 --> 00:49:24,717 Structure SPL, so finish line should 951 00:49:24,717 --> 00:49:28,117 be able to recover from Structure SPL. 952 00:49:28,117 --> 00:49:32,358 And finish line can then go down the chain, the privity, 953 00:49:32,358 --> 00:49:36,518 vertical privity chain, and recover from less enterprises. 954 00:49:36,518 --> 00:49:42,397 I still believe that the broader interpretation is better 955 00:49:42,397 --> 00:49:45,478 in effectuating the intent of the legislature 956 00:49:45,478 --> 00:49:51,198 by making the right mandatory because it permits the Hartford 957 00:49:51,198 --> 00:49:56,317 or finish line builders here to recover the money paid 958 00:49:56,317 --> 00:50:00,918 from either or or both if, let's say, one is insolvent 959 00:50:00,918 --> 00:50:03,397 or one doesn't have sufficient funds. 960 00:50:03,397 --> 00:50:06,078 Counsel, I think we've got these points. 961 00:50:06,078 --> 00:50:08,038 I think they've been adequately made. 962 00:50:08,038 --> 00:50:11,198 I have one question before you sit down unrelated specifically 963 00:50:11,198 --> 00:50:12,678 to this case. 964 00:50:12,717 --> 00:50:17,798 But the concept of Hartford insures finish line. 965 00:50:17,798 --> 00:50:20,717 And it has responsibility, we know, down the chain. 966 00:50:20,717 --> 00:50:23,798 But if finish line didn't make certain 967 00:50:23,798 --> 00:50:29,437 that its subcontractor had insurance and so on down the line 968 00:50:29,437 --> 00:50:30,958 as we know happened in this case, 969 00:50:30,958 --> 00:50:34,638 does Hartford potentially have a claim against finish line? 970 00:50:34,638 --> 00:50:39,918 Because it's providing insurance for which finish line arguably 971 00:50:39,918 --> 00:50:41,837 didn't do everything it was supposed to do. 972 00:50:41,837 --> 00:50:44,277 And structure didn't do everything it was supposed to. 973 00:50:44,277 --> 00:50:45,397 That's more rhetorical. 974 00:50:45,397 --> 00:50:47,877 I mean, that's obviously not in front of us today. 975 00:50:47,877 --> 00:50:49,277 I just think this is fascinating. 976 00:50:49,277 --> 00:50:51,678 And part of it is insurance premiums 977 00:50:51,678 --> 00:50:53,717 for workers' compensation are determined 978 00:50:53,717 --> 00:50:55,478 based on number of employees. 979 00:50:55,478 --> 00:50:57,317 Well, you also have statutory employees 980 00:50:57,317 --> 00:51:00,157 who nobody knows how many of those there are. 981 00:51:00,157 --> 00:51:01,837 So it creates this whole conundrum 982 00:51:01,837 --> 00:51:08,078 of how premiums are computed, who's got liability for what, 983 00:51:08,078 --> 00:51:11,997 and what happens when a contractor or subcontractor 984 00:51:11,997 --> 00:51:14,557 doesn't live up to its responsibility 985 00:51:14,557 --> 00:51:16,638 to get insurance. 986 00:51:16,638 --> 00:51:20,277 So anyway, that was more of a speech than a question. 987 00:51:20,277 --> 00:51:22,078 It's a fascinating area. 988 00:51:22,078 --> 00:51:23,277 So thank you. 989 00:51:23,277 --> 00:51:25,518 We appreciate the brief.