Good morning, Your Honors, thank you for your support.
My name is Mihaela Cabrilla and I represent Hartford Insurance Company of Southeast, who
is a third-party payer in this case.
This appeal, Your Honors, presents an issue of statutory interpretation that is of first
impression.
Namely, how to interpret the mandatory indemnification subrogation right under the Workers' Compensation
Statute in a way that does not render other provisions in the statute negatory or that
doesn't limit that mandatory recovery right.
Let me ask just an initial question.
The legislature knows the term contractor, subcontractor, and sub-subcontractor, correct?
Yes.
And in this particular statute that is at issue, they don't refer to sub-subcontractors
in terms of the reimbursement.
They just refer to sub-subcontractors, correct?
That's correct.
Okay.
I just want to make sure that we're on the same page as far as what the statute actually
says.
Right.
And I want to, I will refer to the exact language of the statute in a little while.
And I don't think I need to go through the facts of this case because they're very simple
and disputed.
There was a payment made by my client in the amount of.
Well, it's simple if you have a flowchart maybe, but.
My client made the payment in the amount of a little over $1.5 million in workers' compensation.
And that payment was necessary because both the subcontractor in this case.
Because of 1B.
Because of 1B, exactly.
And you're contending that because of 1B, one of your arguments, and I want to make
sure you can let me know which one is your initial argument, your fallback argument.
I have to admit, I got confused, not necessarily because of poor advocacy, but just, but I'm
trying to address all of them in my thinking.
So one of the, the crux of at least one of the arguments, if not both, your primary and
fallback is that B makes all of the employees, employees of everybody essentially for, that's
a crude retelling of it.
But that makes Mr. Oliva, or Oliva, the employee of, um, Structures SPL.
What?
Structures SPL.
Oh, yeah.
And not only enterprise.
Okay, but that, so that would make, then that would mean under D that, and I'll just read
the sentence that D says, if a contractor, that's finish line, becomes liable for the
payment of compensation to Oliva, of a subcontractor, Structures, but then that next phrase is
what might be a problem for your theory.
Who has failed to secure such payment?
It was not Structures' obligation to secure the payment for Oliva.
So I, I could concede that Structures meets part of essentially the definition of, or
constitutes the subsequent term, the subcontractor, meaning that would be liable to the contractor
because everybody's employees are everybody's employees.
So yes, Oliva was Structures' employee and yes, finish line became liable to Oliva.
But what's, how do you account for the other criteria, which is who has failed to secure
such payment?
That doesn't apply to Structures.
Well, your Honor, with all due respect, it does under the privity, under the vertical
privity scheme that the legislature has created.
Where?
B doesn't say, B, B doesn't say that, B doesn't say that Structures has to, you know, get
insurance itself on behalf of its subcontractor's employee.
My apologies.
In other words, if Structure, let me answer this, if Structures, if, if the, you know,
the regulatory investigator for workers' comp comes to the work site and, and Oliva was
not covered, could that, could Structures be liable under 440.38?
Yes, your Honor, because Structures is required, so Oliva became a statutory employee of Structure
SBL under the statutory, the vertical privity scheme.
Under B, under subsection B.
Under subsection B. And if you, if your Honor looks at the-
For what purpose?
I mean, one purpose we could say is the last sentence, the contractor shall be, the contractor,
we could say Structure's the contractor because they have a subcontractor, liable for payment
except to employees that the subcontractor has secured.
So they're liable for what, are they liable for payment for, for injury or are they liable
under 440.38?
They're-
Or is that the same thing?
They're liable to, it's exactly the same thing, they're liable to ensure that they have workers'
compensation for all the employees, all the, including the statutory employees, not only
its own employees, but also those of enterprises because Structure SBL sublet part of its contract
with, with Finish Line to enterprises and that made it a contractor.
If your Honor looks at the Florida Supreme Court that we cited in our brief on page 31,
which is Arthur Collins and Son, the court explained in that case that each subcontractor
who sublets a portion of his contract becomes a contractor for the purpose of securing compensation
for the employees of his subcontractor.
That's between, that makes the subcontractor a contractor.
It doesn't make the primary contractor the contractor.
I understand the vertical responsibilities, but that seems to specify that Structure is
now in the shoes as a contractor, right?
Right.
And Less Enterprises is its subcontractor and Oliva is the employee of that subcontractor.
So going back to the statute, it says if a contractor becomes liable for payment of compensation
to the employees of a subcontractor, the contractor or other third party payer is entitled
to recover.
That, the way the plain language is that Structure is entitled to recover from Less Enterprise
if Structure had made payment to Oliva, but Structure as the contractor didn't.
And so that statute as worded, you're adding language that, and by the way, the general
contractor, the big contractor, they're now standing in the shoes as contractor for Structure
and contractor or subcontractor and being Less Enterprises, when Less Enterprises is
a sub-subcontractor.
The only reason why-
And just so you know, from an intent standpoint, your argument does make some sense.
But as we now know, the Florida Supreme Court and other courts are saying absolute textual
analysis based on the words.
And that's why my first question was, legislature knows how to use the term sub-subcontractor.
And in this reimbursement section of the statute, they don't.
And they could have.
Well, then, in that sense, we could go to our second argument that is narrower.
And the subcontractor vis-a-vis finish line builders and my client, who's the third party
pay or Hartford, then the subcontractor is Structure SBL.
It's not Enterprises.
So then you would have the reimbursement that-
But Oliva wasn't employed by Structure.
But it's a statutory employee.
And that's why Structure SBL is employed.
Under B, Oliva is the employee of Structures as well?
Is that what you're saying in response to-
Yes, because that's the-
Shall be deemed employed in one and the same business or establishment?
Exactly.
Leaving aside that it's possible that that's only for the purpose of the contractor being
liable, not the subcontractor.
But let's say that, again, that goes to my initial question for you then.
Then presuming that is constructively the way that the statute operates, which is to
say that Oliva is not only Enterprises' employee, it's also Structures' employee.
I'm still at a loss to say that Structures is the one who failed to secure a payment
in violation of 440.38.
What does 440.38 say?
It says, every employer shall secure the payment of compensation under this chapter by ensuring
Every employer, including Structures-
Again, so you're going to tell me that- Okay, so could finish line have been in violation
of chapter 440.38 because it's sub, sub, sub, sub, sub, sub, subcontractor didn't carry
workers comp?
And let me tell you what I'm saying.
So maybe I'm right, maybe I'm wrong.
I'm making a distinction between liable.
Yes, finish line is liable for its sub, sub, sub, sub, sub, sub, sub, subcontractor's employee
who gets hurt if its sub, sub, sub, sub, sub, subcontractor doesn't have workers comp.
Yeah, you got to pay out.
But does that mean that there is a requirement under 440.38 if its sub, sub, sub, sub, sub,
subcontractor doesn't carry workers comp for finish line to carry workers comp?
Yes, Your Honor.
Under the statute- Where?
Finish line is required to, under 1A, any contractor or subcontractor who engages in
any public or private construction in the state shall secure and maintain compensation
for his or her employees under this chapter as provided in 440.
Okay, so you're saying that B also applies to that.
So in other words, every general contractor, again, not liability, I get it.
What I, okay, the way I read 1A, you're going to correct me and opposing counsel is going
to correct me back, but if, is that this, this is a liability.
It's not a insurance, it's not a workers comp insurance mandate.
It's a liability provision.
Yeah, finish line's liable to LIBA because it's literally sub, subcontractor.
So the subcontractor should have insured him and he got hurt.
But does that mean that, again, some regulator from the division, Department of Labor, whatever
we call it now, the DEO comes on the side and says, you're in violation of a regulation
that requires you to actually have workers comp insurance for your sub, subcontractor's
employees.
Is that true?
Your Honor, I can't speak as to what happened with another regulatory agency.
I know, but just to clarify, that's what I want to know because that's what I think answers
the question of, of, of this phrase.
Who has failed to secure such payment in violation of 440.38?
Because everybody in, who employs, so basically OLIVA was a statutory employee of structure
SBL and structure SBL and the trial court found that structure SBL failed to secure
workers comp, workers compensation insurance.
And that's why.
For whom?
For its own employees?
For all the employees.
No, you said, you said the trial court.
Well, that's because structure SBL becomes a contractor vis-a-vis enterprises, right?
Back up for a second.
Just, sorry.
I just want to clarify.
You said the trial court found that structures had failed to provide workers compensation
to OLIVA, insurance to OLIVA?
Right.
Because it didn't carry workers compensation, either precision or structure SBL.
That's why.
Why would structures workers compensation insurance, insurance policy cover enterprises employees?
Because.
Why would it?
Because.
Would it?
Because structure SBL became a contractor.
Would structures insurance policy cover OLIVA if it had one?
Yes.
It should.
I mean, it should have covered if it had one.
It didn't have one.
So the subcontractor is supposed to actually carry a policy for enterprises?
Yes, your honor.
Because the subcontractor, the subcontractor, what it did here, it sublet part of its contract
to enterprises.
So the first thing that happened is finish line sublet part of its contract to structure
SBL.
And then the next thing that happened, part of that contract that was sublet to structure
SBL, structure SBL went on and sublet to precision.
And now structure SBL becomes a contractor vis-a-vis precision.
And that's why it's obligated to have insurance to cover the statutory employees of, that
becomes statutory employees of structure SBL.
What support do you have for that?
I understand that it becomes liable.
I understand, I can buy that structures is liable for OLIVAs to pay for OLIVAs injuries
because enterprises did not have insurance compensation.
Neither enterprises nor structure SBL.
And I wanted to point out...
that the appellee did not cross-appeal that determination
that basically it was a subcontractor
and it had the obligation to carry insurance
and because it didn't carry insurance
and Precision didn't carry insurance,
that's when the judge-
Again, what was its obligation to carry insurance
for its own employees, right?
But the employees of the sub and the subcontractor
are considered to be employed by the same-
For what purpose?
For the purpose of carrying insurance for them
or for the purpose of liability
in case your subcontractor doesn't have
workers' comp insurance for its employees?
That's two separate things, isn't it?
Yes and no in the sense that if you don't carry insurance,
how are you gonna be able to-
Pay out-of-pocket, get sued and pay that way.
Well, that's the very problem why we are here.
Perhaps some of the subcontractors
cannot pay out-of-pocket if they-
Well, but that's the difference
whether it's a good business practice
to be self-insured for that purpose
or carry a larger, I don't even know if that exists,
a policy to cover your subcontractor's employees
under workers' comp is a different question
than whether the Chapter 440 requires by virtue of 1B,
which seems to me to be in a liability provision,
not a insurance mandate provision.
Ms. Kabulia, before you answer that,
you didn't ask to reserve time for rebuttal.
You're at four minutes, so I don't know.
You can answer that question,
but if you wanna reserve any time for rebuttal-
I would like to reserve some time for rebuttal.
You can answer that question.
May I say one thing that I wanted to say?
Even under the narrower construction,
it should still be the structure SPS,
who's liable to, I mean, who should reimburse my client,
and then structure SBL could go after precision
because the subcontractor vis-a-vis the Hartford,
my client, is structure SBL,
not the sub-subcontractor precision,
and I'll reserve my time.
Very good, thank you.
You'll have four minutes.
Good morning, everyone.
Good morning.
May it please the court, Ronald J. Israel
from the firm of Israel Ponzoli,
on behalf of the Apolli Structure SBL.
We appreciate you hearing us today.
Your honors, this case should be affirmed
for one straightforward reason.
The statute is broken down into three different subparts,
and each one has its own function.
The first part, the 440,
the part that we're talking about today is 440.10.1.D.1.
I'm gonna say D all day today
because it's just the way I do it,
but in section D, it creates the reimbursement remedy
for the contractor, whatever contractor it is
that ends up paying, has a reimbursement right against the,
the word the in quotes, subcontractor
whose failure caused the payment,
and in this case, the lower court properly found
that the subcontractor whose failure caused the payment
by a contractor, doesn't say which one, was Enterprises,
and Enterprises rightfully got judgment.
1B, what it does, and they focused all of their argument
on 1B, 1B is the vertical privity and the immunity statute.
That tells us why Hartford paid.
The law makes finish line builders
as the general contractor ultimately 100% responsible
for the provision of workers' comp on its site
and it can do that in two ways.
It can carry its own policy, or it can ensure
that every subcontractor that steps
on that site has appropriate coverage,
and in the instances where they don't,
the statute's very clear.
The subcontractor who failed to secure privilege
for its employees, it doesn't say statutory employees,
it doesn't say anyone in the vertical chain,
it doesn't say up and down the chain,
it doesn't say any of these words,
and that's Hartford's interpretation today.
They want the court to expand the structure
of what it means, and it's just simply not there.
Can you answer my question that I posed to opposing counsel,
and I wanna invite you to tell me
that my question was misguided,
even though it seemed probably ostensibly
to be one that would favor you.
Am I misguided in focusing on the phrase
who has failed to secure such payment
in violation of section 40.38?
What does that mean?
Absolutely, you're right, that's the whole case.
Does that mean secure insurance?
Who failed to secure compensation coverage, payment.
In this case, Hartford paid out a lot of money,
and they're saying, we wanna get it back,
and the question is, under 1D,
who do they get it back from?
What if you had, think about it this way, your honors,
what if you had 15 sub, sub, sub, sub contractors,
and someone down the line doesn't have coverage?
The statute doesn't say it goes back up the chain
to the next guy, it says the contractor
who failed to secure coverage for its employee,
and that's right in the statute.
And then there's, but the opposing party is saying
that the, it is, I keep my S's incorrect,
structures as employee.
Okay.
That does say, shall be deemed to be employed
in one and the same business.
I don't have any arguments with 1B.
1B is the vertical privity and immunity statute,
and what that does is she is correct,
it makes everybody a statutory employer.
Okay, and it does, and that's, remember that word.
If that's the case, then why isn't,
why wasn't structures required to secure payment for Oliva?
Because the statute puts the burden, again,
because the statute, let me read it to you.
Sorry, let me just get exactly here.
All right.
Okay, so in B, it says, and the contractor,
meaning the general contractor, is liable for,
shall secure the payment of compensation
to all such employees, except to the employees
of a subcontractor who has secured such payment.
It makes the general contractor ultimately responsible,
except whether it's a subcontractor who has coverage.
And the Supreme Court of Florida's already addressed this.
It's in the Fidelity versus Arthur Collins case.
They actually cite it, thinking it helps them,
but it actually illustrates what happened here.
In that case, you had a contractor,
a sub, and a sub-subcontractor.
But in that case, the same thing,
the sub-subcontractor failed to have coverage,
and then the commission came back and said,
well, we're gonna make it both.
But the statute doesn't say both.
It says the subcontractor who failed
gets the responsibility.
And the case cites a Pennsylvania case, the Quall case,
which talks about that the contractor shall be liable
and shall secure, except for when they have been secured.
And it says it's to protect employees,
and it's ultimately the contractor
who has to provide compensation liability across the board,
and he can do that in his subcontracts.
And if he doesn't, if he doesn't require that,
the statute makes him liable under 1B for coverage.
So again, what they want you to add,
they want you to change the statute to say
if the contractor becomes liable to the employees,
or they want you to say the statutory employees
of a subcontractor, and they wanna say,
then it puts the statutory modifier.
The subcontractor who has failed to secure such payment.
They wanna say any subcontractor
who failed to secure such payment.
Anyone in the chain who failed.
Because there could be 15 subcontractors.
Our case, luckily, is a little simpler than that.
But the statute says exactly what it says.
We're not asking for a narrow interpretation.
We're asking for a harmonious interpretation
where each section is given its proper due.
The better reading of the statute is 1B protects the worker
and places ultimate payment responsibility
on the general contractor.
It says that in all the cases.
And that responsibility is also outlined
in the case law, it's also in our brief.
But in Arthur Collins' case, I'm looking at it here.
I mean, didn't the Florida Supreme Court say
that the person in your spot, the subcontractor,
had a duty to have insurance?
In that case, they do.
And there is a factual dispute.
It doesn't affect your ruling today.
It does not affect affirmance or reversal,
if that's the case.
The factual dispute is whether SBL had any employees
in Florida and had to have coverage anyway.
The facts, and it's cited in our brief,
it's addressed briefly.
Because they not only asked for reversal,
they asked for a reversal.
But Oliva is a statutory employee of SBL.
And your client signed a contract
that would require actual services
on that construction site,
and then you just sublet it away, right?
Exactly, that is correct.
And the factual issues that prohibited them
from getting summary judgment
are the waiver and estoppel issues.
Because the insurance certificates were unsigned,
the contract addendum requiring comp,
because it's argued, again, this is a factual dispute,
which really is not before us today,
but it was argued that they knew SBL
was putting someone else on the site.
SBL never stepped foot in Florida on the job site.
An independent project manager came down from Canada once,
not related to us, by virtue of employment.
And again, Structure SBL's employees
are covered in Canada under CNIST,
which is also put forward in our brief.
So there's a factual dispute
whether we had to have coverage anyway.
The contract's unsigned on the comp insurance pages,
and the certificate that Structure SBL provided
to finish line builders to get this job
showed it had no workers' comp,
and finish line proceeded anyway.
And what the law does when a contractor
accepts a subcontractor that doesn't have coverage,
they automatically, under 440,
they take responsibility for those comp coverage
for all the employees down the chain.
But your client, as the contractor for the other company,
it would have accepted that same liability, right?
It would have except if we stand in the shoes
of the word contractor now, right,
as vis-a-vis enterprises.
Then the statute's even more clear.
The subcontractor who failed to secure coverage,
in this case, is enterprises.
No matter which road you go down,
the contractor, whether I call him a subcontractor.
Your position is that even though
your client could be deemed a contractor
in one circumstance, it doesn't change the nature
of the relationship between it and the general contractor.
It does not, and it also doesn't collapse 1B and 1D into one.
You can't do that.
That's not what happens.
They are separate and distinct statutes.
I'm sorry, separate and distinct provisions.
And you can't erase the statutory modifier
is the employee's, you've secured payment,
and let me just read it for you again,
because it's really important.
To the employee of a subcontractor,
the employee in this case we know is Aleeva,
the subcontractor we know is enterprises,
I'm sorry to get their name wrong,
who has failed to secure such payment.
Every way you read it, whether we're the contractor
or the subcontractor.
Bozengas was saying, though, that the obligations
of 440.38 apply up the chain by virtue of B.
In other words, that A sub, there's two phrases, right?
Two phrases, A subcontractor and the subcontractor.
Finish line wants the subcontractor
to be able to be applied to structures.
She'll correct me if I'm wrong,
but her argument is that that phrase,
who has failed to secure such payment violation
of 440.38 applies equally to structures and enterprises
because Oliva is just as much substances as,
I mean, structures employee as it is enterprises
by virtue of section B.
Again, I don't quibble with 440.38
and I don't quibble with 1B at all.
It does, there is a privity scheme,
there is a statutory employer scheme.
I don't have any problem with that.
What I have a problem with
and what the trial court correctly did
is the statute, no matter which way you read it,
whether you call us the contractor
for the purposes of the sub-subcontract,
the statute is very clear on, not on the liability,
the liability is part B,
but on the recovery of benefits paid
and the right to is against the employer
who employed someone in the state.
That's Oliva.
It doesn't say employer.
It says, I take your meaning.
It means someone who is the employer for the employee,
but by B, according to subsection B,
structures is the employer of Oliva.
It doesn't say statutory though.
There's a difference.
If the legislature wanted it to say statutory employee
or anyone in the chain, it could have said that.
So it could have said.
But it's the same statute.
In a case of contractor sublets,
all the employees of such contractor, subcontractor,
subcontractors engaged in such work
shall be deemed to be employed
in one and the same business or establishment.
Agreed.
Okay.
Again, I don't quibble with that.
It's simple, a plain reading of this statute
says it's directing exactly.
It says a contractor becomes-
That's my point is this.
We can quibble about what that means,
but for you to say,
well, subsection D needs to say statutory employee.
I don't, I can be ambivalent
about what B means when it says that,
but I'm not, I don't think,
you can use B to aid your interpretation of D
even though employee doesn't say statutory
because D, B talks about what employees.
I agree that you can read them in concert,
and you should read them in concert.
But again, the statute's very pointed in this section.
And it says the subcontractor who
failed to secure such payment.
And the subcontractor.
So now we're back to my other question, which
is, can it be argued that Structures failed
to secure payment in violation of 443-8,
given that under subsection B, Oliva is its employee as well?
They've made that argument.
The court rejected it.
I know, I'm asking you whether we should reject it.
Oh, no, no, you should reject that argument.
There's factual disputes on whether SBI had that.
No, no, no, I don't want to know about the factual disputes
about whether, unless I'm starting to cut you off,
whether Structures actually has employees itself.
Sure.
I'm not talking about that.
OK.
I'm talking about whether, by virtue of Oliva
being, by operation of statute, Structures' employee
in subsection B, why can't it be concluded
that Structures failed to secure such payment,
meaning whatever it's obligated under 440-38 to provide
for Oliva?
It's because it would create full stream chaos.
No, I want to know textually.
OK.
The D is very specific.
It's the employees of the subcontractor
who failed to secure coverage.
And again, you can't just repeat the question.
No, no, no, I'm just reading.
I'm reading.
I apologize.
Maybe I misunderstood your question.
I'm trying to read from the statute to answer it.
OK.
That the first part talks about contractor B
and the privity thing.
The second part talks about who has to reimburse
if a contractor gets hit.
And the Collins case, in that case,
because both the contractor and the subcontractor
have coverage, they said that the first guy that
has coverage pays.
But in that case, I would argue that in the Collins case,
if the second first-tier subcontractor didn't have it,
the contractor would have had to pay.
And then he still has to go after the subcontractor whose
actual employee it was, because it doesn't
say the word statutory.
Let me ask you.
This goes to this whole textual analysis.
Subparagraph or paragraph 1B in 44010
has been interpreted to provide for vertical responsibility.
But the wording in that statute talks about,
to use the other side's argument,
that if SBL is now treated as the contractor,
then Hartford, absent the interpretation of case law,
shouldn't have been responsible to pay.
Well, the case law and the statute
absolutely makes the finish line builders
and Hartford, your third-party payer, ultimately responsible.
How does Bede make that?
It's because it says, if the contractor sublets,
he's responsible, except to the employees of a sub who
has secured some payment.
But the other side's argument is that SBL now
becomes a statutory contractor.
And so if it is a statutory contractor,
then Hartford's responsibility isn't
to that statutory contractor and all of its subcontractors,
but for case law that says, yes, it is.
And so how do you reconcile that interpretation,
that there is vertical privity?
And yet, why wouldn't that same analysis apply to D?
Because it doesn't say jointly and severally liable.
They've already received a judgment.
But B doesn't.
There seems to me an intellectual leap
in vertical privity, because the statute says what it says.
And so if the primary is who precision?
No, finish line.
Finish line.
So if finish line is a contractor,
and now there is a subcontractor who is converted
into being a contractor, what does that make finish line?
A supercontractor.
It's the general contractor.
They're still the contractor.
But I guess this is maybe not a very articulate way
to address this issue.
But the interpretation of B has been, yep, it goes up the chain.
And you, as the general contractor,
are ultimately responsible no matter what.
But that's not how the actual practice works in this case,
because you have SBL being a contractor, which
should mean, if we take the strict textual wording,
then Hartford, who ensures finish line,
shouldn't be liable.
This is more speculative, because we've
gotten into this textual analysis.
And so I have some difficulty reconciling B and D
and why they should be treated differently.
It's the statutory modifier, the word the subcontractor,
who failed to secure coverage for its employee.
And in this case, Oliva was the observed employee.
Its direct employer was Enterprises,
and they failed to secure coverage.
You said direct employer.
You said its employee.
But when you go back to it, it's like clarifying.
Let me ask you to hopefully not, I
don't want him to ignore your question.
My question is inconsistent with how
the law is interpreted, the statutes,
as far as the vertical.
I think it works well.
I mean, I think 1B gets coverage to the employee.
That was the public policy of 1B.
It makes everybody.
But that's not how the wording seems to be.
That's not how the wording seems to be if she is correct
that SBL is now the contractor.
Again, for argument's sake, even if that's
the case, which I don't concede that's exactly the case,
under 1D, I'm not conceding that.
What I am saying is even if that's the case,
then the subcontractor who failed to secure coverage
for its employee is still Enterprises.
And they have received their statutory remedy.
They just don't like it because they
think that that particular entity is not collectible.
So believe it or not, this does have something to do
with Judge Zilberman's question.
So it's curious.
I agree with Judge Zilberman that it could
be interpreted in multiple ways.
Maybe.
But it's curious that it works the way it does.
But I think it works the way it does for this reason.
The interpretation is as it is for this reason.
All the employees are Hartford's employees under subsection B.
Right?
That's the mechanism that makes not Hartford, whatever,
not the insurer, but finish line.
Right?
OK.
So that may not satisfy Judge Zilberman's question
about why it's curiously interpreted this way.
But that's the interpretive mechanism.
Right?
Yeah.
So why does that also not apply to Structures?
All the employees are Structures employees as well
if Structures is a contractor for its subcontractor
Enterprises.
Because D specifically says it's the subcontractor who
failed to secure coverage.
And if it wanted to say.
Let me ask you.
So why did both of them fail to secure coverage?
The legislature, if they wanted to.
It's a subcontractor who failed to secure coverage.
It says the subcontractor.
Employee of a subcontractor who has failed to secure coverage.
And then it shall be entitled to recover from the subcontractor.
Exactly.
Because I know it says a.
There's only one subcontractor who employed someone
in Florida that failed to secure coverage.
I'm still trying to get you to address that argument saying,
well, couldn't it be that Structures also
failed to secure such payment of I-4430.
If by virtue of subsection B, finish line
is the employer of everybody down the line,
why isn't Structure also the employer of everyone
down the line from it?
And why isn't Structure?
I have my answer.
And I gave it earlier.
But that's why I opened.
You don't like my answer, apparently.
No, I hear what you're saying.
And I think you can twist the statute to that meeting.
I think you can.
But the legislature knew what they were doing.
And if they wanted liability reimbursement.
So let me ask you my question again,
because you don't like my answer.
And maybe it's because I wasn't clear.
And that is probably the case.
It's probably because I wasn't clear.
I'll just be more direct than I was with opposing counsel.
Does either Structures or finish line under 440.3,
are they not liable?
I understand 1B is a liability provision.
But as far as an insurance mandate,
does 443.8 mandate that if enterprises
doesn't have workers' comp insurance for Eliva,
that finish line is supposed to?
If finish line, and I'm sorry, if Structure SBL
was doing business in Florida and had employees in Florida,
it would be required to have workers' comp.
OK.
Structures, that's the factual issue
that I don't want to care.
Hypothetically, we're not conceding
for the sake of discussion that Structures is subject to 443.8.
Was it required to insure Mr. Eliva?
Basically, no.
Enterprises was required to insure Mr. Eliva.
It's employee, and that's 1D.
That's what it's all about.
OK.
I just want to be clear.
So it's not required to insure him.
It's just liable if it's the contractor, if he gets hurt,
and it's subcontractor doesn't hold workers' comp insurance.
Exactly.
OK.
So we're clear on that.
So that means finish line, also under 443.8,
we're presuming finish line, and let's just
say Structures is in Nebraska and not Canada or whatever.
Under 443.8, neither finish line nor Structures
is required under an insurance mandate
to carry workers' comp insurance for its sub or sub,
sub, sub, or sub, sub, sub contractors' employees, right?
Mr. Benzoli, I'm going to let you answer that question.
I've let you go over by about three minutes,
and this is an interesting case with a lot of complexity.
It is a lot of twists.
And so I don't want to work.
I'm not going to cut Judge Atkinson off
if he has a follow-up.
I'm going to answer the question.
I just don't want to forget it.
The issue is, oh, Lord, I just almost forgot it.
No.
The issue is that 1D takes care of that.
Wherever you are, 443.8 says if you're
going to do business in the state,
you have to have a workers' compensation coverage.
That's one statute.
Fantastic.
I agree with that statute.
We all agree.
Then the next thing you come over here is 440 takes care of it.
It makes the primary contractor ultimately
responsible for coverage of every person that
steps foot on that site.
And it's his duty under 1C to collect insurance certificates
from everybody who are going to step on the site.
And if he fails in that duty, he becomes responsible.
And that's what the statute says,
and that's what happened here.
And that's exactly what happened.
So all of these work together.
It's a very simple process.
443.8, I have no qualms with it.
I don't.
But the part we're missing, and it's
set forth in the Collins case, I'm sorry,
the fidelity of the Collins case,
is the contractor is ultimately responsible under 443.
That's it.
So with that, I thank you.
I'd ask the court to affirm the ruling.
Very good.
Thank you very much.
Thank you, Judge.
Counsel, you had four minutes reserved.
But opposing counsel got a couple extra minutes,
so you will have it as well.
Thank you so much, Aaron.
I really appreciate it, especially because
of the heated debate here.
And I wanted to start, before I forget,
with directing the court's attention to some
of our sites in the reply brief that clearly demonstrate
we don't have any factual issue about the fact
that Structure SBL had employees in Florida,
had three employees.
They didn't file for any exception
that either of them are kind of management that shouldn't
be considered employees.
One of them had site visits to Florida.
Two of them, they argued there's some independent contractor.
But that particular person, I believe
it was Mr. Fortier or Mr. Rancourt, either one of them,
had even an email with Structure SBL domain in it.
And it's page one and two of our reply brief.
So this idea that we have a foreign entity who's not even
present in Florida is completely wrong.
Does that really matter to the discussion
that we've been having?
Well, it matters to the point, I apologize.
I should have let you finish the question,
but I only have four minutes.
OK, well, does it really matter to the question?
Because the employees of, I think it's Precision,
now I've gotten confused on the names of the three entities
here.
Enterprises.
Enterprises, enterprises, sorry.
Enterprises, Structure is the statutory employee for them.
So does it really matter if they actually
have people here or not?
It matters.
They're required to get workers' compensation
for their own employers and for all the employers.
That brings me back to my hobby horse.
Sorry?
That brings me back to my hobby horse.
Structure is required to have a policy for whom?
For the employees.
For its employees, right?
Its and the subcontractor.
Where?
Where does it say that?
Well, because.
Now, I'm not saying it's not liable.
I agree that it's liable if Enterprises doesn't have
workers' comp for Mr. Oliva.
Any contractor.
The closing statement of opposing counsel
is that C makes the contractor responsible
if the subcontractor doesn't have insurance.
But what does responsible mean?
Does it have to insure them?
Or does it just have to pay out if he gets injured?
I mean, it should be responsible.
It doesn't.
It says contractors shall require a subcontractor
provide insurance.
It doesn't say, if not, you've got to have a policy for them.
It says.
It just says you're liable if they don't have it.
Abbott, you've got to pay for that guy's injury.
No, but it does say in section 1A
that any contractor or subcontractor who
engages in public or private construction in the state
shall secure and maintain compensation
for his or her employees under this chapter.
So you were saying that Structures
needs to have which employees should be covered
under Structures policy?
All the employees that are considered
employees of disabled.
You're going back to that.
So B means you're contending that if the Department
of Economic Opportunity walked onto the site
and they'd say you're in regulatory noncompliance
because you should have had a policy that
covered your subcontractor's employees.
Under 440.3.
I don't want to speak for the department, Your Honor,
because I wasn't thinking about that issue.
But I want to point out that we are not asking this court
to rewrite the statute.
We're just asking the court to read it harmoniously,
that this subsection D1 with subsection B,
because reading it like that not only gives effect
to the mandatory right to recover,
but it also doesn't render other provisions
in the statute negatory.
The way that the trial court interpreted it
is very narrow to apply, and there's no support for that.
I want to point out to the court that subsection D does not
say if the general contractor becomes liable.
It says if a contractor becomes liable.
So our argument is here we have a contractor
who became liable, which is Structure SPL.
I get confused about all these names as well.
Structure SPL becomes liable for Mr. Oliva's injuries,
doesn't have workers' comp, and is not on the hook.
Then what is the meaning of having the vertical ribbon?
Let me ask you that.
Wait a minute, if you say the first instance
of the word contractor in subsection D,
you're saying that's structures.
So you're saying structures is liable to structures?
Because it says if a contractor becomes liable,
then the contractor shall be entitled to recover
from its subcontractor.
That's enterprises.
Exactly.
So how does that make finish line structures
liable to finish line?
Because neither Structure SPL nor enterprises
had workers' comp, and neither paid.
So automatically under the statute,
Hartford became liable as third-party payor
for finish line to pay workers' comp,
because that was the only insured entity.
The general contractor was the only one insured.
And by interpreting it the way the trial court did,
this entire vertical privity has no meaning.
If somebody like Structure SPL can come into Florida
from Canada, not insure its own employees
and that of its subcontractors, and then
get away without reimbursing, the right under D1
is a mandatory reimbursement right.
But the trial court interpreted the statute in such a way
that it limits that right.
And now it's limited to only enterprises.
But it's Structure SPL as well who failed.
And this is our broader interpretation.
But under our narrower interpretation,
we should still go to the meaning of the statute
and look at the fact that the contractor in this case
would be, let's say, general contractor has
to pay because none of the subcontractor or sub-sub paid
should be able to recover from the subcontractor.
Who's the subcontractor relative to finish line?
It's Structure SPL.
Structure SPL, so finish line should
be able to recover from Structure SPL.
And finish line can then go down the chain, the privity,
vertical privity chain, and recover from less enterprises.
I still believe that the broader interpretation is better
in effectuating the intent of the legislature
by making the right mandatory because it permits the Hartford
or finish line builders here to recover the money paid
from either or or both if, let's say, one is insolvent
or one doesn't have sufficient funds.
Counsel, I think we've got these points.
I think they've been adequately made.
I have one question before you sit down unrelated specifically
to this case.
But the concept of Hartford insures finish line.
And it has responsibility, we know, down the chain.
But if finish line didn't make certain
that its subcontractor had insurance and so on down the line
as we know happened in this case,
does Hartford potentially have a claim against finish line?
Because it's providing insurance for which finish line arguably
didn't do everything it was supposed to do.
And structure didn't do everything it was supposed to.
That's more rhetorical.
I mean, that's obviously not in front of us today.
I just think this is fascinating.
And part of it is insurance premiums
for workers' compensation are determined
based on number of employees.
Well, you also have statutory employees
who nobody knows how many of those there are.
So it creates this whole conundrum
of how premiums are computed, who's got liability for what,
and what happens when a contractor or subcontractor
doesn't live up to its responsibility
to get insurance.
So anyway, that was more of a speech than a question.
It's a fascinating area.
So thank you.
We appreciate the brief.