are getting set up i have forgotten to mention this morning that we have some students and faculty from st thomas university school of law and we're very happy to have you here hope you enjoy the the proceedings you're arguing for i'm here on behalf of appellate lea alice blue you got it in with your last name is anderson yes my middle name is ok got it i had a i had it mistakenly put here my apologies go right ahead a state court personal injury lawsuit which my client brought against mr weiss his client arpan and sons arising from the catastrophic injuries that my clients are staying at a job site in miami florida my  client is now a double amputee of the arms because of what happened at that project the trial judge in this case found that the apple e mid continent  casualty company insurance company owed no duty defendant no coverage obligations to its insured arpan in sons for any of the allegations for the in the underlying complain now the court essentially found as a matter of law that arpan in sons was a statutory employer of my client mr blue now for that finding t to be sustained it requires an analysis of the controlling statute which everybody agrees is controlling a section for forty ten subsection one b of the florida code that statute provides you know just quote a little bit of it says in case a contractor sublets any part or parts of his or her contract work to a subcontractor one there has to be an agreement between the entity that is under under review with a rd party so that's the contract part and then secondly assuming that is found then that entity has to sublet or subcontract out part of that contractual undertaking to someone else i can't let me let's talk about the st part of that and i'll ask mr weiss and mr cameron the same questions doesn't get to the question of the agreement parts of will turn to that in a nd but there is no doubt in this case that arpan under took in so far as municipal regulatory entities were concerned the role of general contractor for this project right general contractor of record yes you're right that part is on the parts and disputed as undisputed right ok so the one of the questions not the only one but one of the questions is what sort of obligations flow from that are there any obligations in the absence of an agreement and a sub letting or a subcontractor not in so far as the issue before the trial judge in this case the coverage issue and the statutory employee analysis no i don't think so now in the underlying negligence lawsuit that my client brought against arpan the fact that r p n is the general contractor of record that may have some bearing on his liability but the question is it's very narrow your honour's this issue is controllable by the plain language of section four hundred and forty point one and like i said before without being a dead horse there's two aspects to that which is one the underlying contractual agreement between the entity in question and a rd party and secondly was any of that contractual agreement sublet or subcontracted to someone else whose employee was injured as a result that did not occur happen in this case well there was some type of agreement it may have occurred after the fact it may have been for inadequate or nonexistent consideration but there was there was an agreement whether it was a valid legal contract or not maybe a different angle but there is no doubt that the church and our been agreed that our been would the agreement well what about the what about the after the fact correspondence between arpan and the church with regards to this tax benefit by the way i have no idea the brief don't explain what this tax benefit is even based on is it state law federal law is it something that the church is able to assign the only evidence of that comes in  deposition of mr arpan and through those two documents that you referenced the so called invoice and the so called tax credit letter that's what the judge called it here's here's the testimony from from m was this something and were referencing the so called invoice was this something this is the question something that are put in sons provided to face deliverance church in connection with its involvement in the project answer that's my generated that thinking that without talking to pastor rory that's the gentleman in charge of faith deliverance church without talking to pastor rory thinking well that's a nonprofit institution so possibly i could get a tax deduction for doing that and upon showing it to my accountant my accountant he had a statement which we will not repeat but said you may as well forget about that that is the testimony and then we have the answer can i ask you question i think we know with that testimony is but i want to make sure your client got paid a check paycheck prior to his oka your client got a paycheck one paycheck i think it was about a month before the injury and i think he was described as not deposited until after the injury perhaps even but that it was to allow him to get workman's compensation coverage is that correct or not arpan mr don harper not my client your honor undertook at st to i'm sorry did your client get a paycheck from mr arkin a month before the injury i'm not sure that my client has testified about it but i know that in the record there is an indication of a check ok did your client get approximately three one hundred and sixty nine thousand dollars in workman's compensation benefits one hundred thousand in medical and maybe to sixty nine and it was after the injury yes or you know i know my client has received a lot and that's a nd issue dealing with are you not concerned about your clock to speeding in workman's compensation frog if you are not an employee are our position has been the position that we're taking in this case is not inconsistent with anything that we've taken from the beginning of this action under the isn't one of the reasons why the state of florida requires a general contractor on jobs like this is to assure with regard to the state interest that there's at least a certain degree of procedure to make sure that employees employees workers the public except for are protected from injury jobs are done correctly things like that isn't that part of the reason why the state has a scheme involving general contractors that is i'm i'm sure it is your honor but respectfully the actual i suppose the controlling state interest is in the plain language  obama case yes two thing i have two answers to that number one it's factually it doesn't even resemble this case because the so called or the entity that was allegedly that that was deemed the general contractor in this case was literally involved with the actual underlying construction project up to the proverbial ears but as to the actual i guess broader holding of iran which is that if you act as a general contractor you're going to be the statutory employer as a matter of law no matter what we believe that that around a case is an outli r the wellington case which this court decided i understand it's an unpublished decision therefore not binding but it's persuasive it directly applies the plain language of forty four thousand and ten and the other cases cite do the same thing just because you put on a general contractor hat in our opinion the great weight of authority is that that doesn't qualify you or or make huge statutory employer facts of the case if you were sued for the alleged negligence during the construction would create liability on his part but the reality is that all he did was volunteer something for instance for which he never got paid and i think that has been addressed but by doing what yes or by doing what arpan did it facilitated and actually allowed workman's compensation company well that's a matter of dispute they certainly don't see it that way but all they they did clearly they did they did claim a lien and respectfully because this is kind of what i've been defending these kind of  cases in civil court is what i do for a living they paid it out they know that mr blue has a viable claim if not against arpan against a whole bunch of people so the recovery the recovery back of that money in the real world not necessarily in a legal sense in a real world is is just a loan for lack of a better lack of a better term because ministry has pointed out they have claimed a lien against the proceeds recovered by lawsuit and i asked you a question disserves see if that's sure of course did your client ever disclosed to the state of florida authorities local authorities that that that company was only taking on the responsibilities of allowing their general contractor's license number to be used to apply for the permits and that's the only part that they were playing in this yes or no at the answer is no but it's not asked in the application ok all right so did your client wouldn't your client have been just isn't title to any tax benefit of four voluntarily contributing services to a not for couldn't your client have claimed that he made the contribution regardless i guess i guess and i guess and in the the real world that we actually don't live in the answer's yes but he didn't ok and it's next question did your client disclose to the workman's comp carrier either at the time of securing the coverage for the employees or at the time of disclosing the accident in the form of a claim that i think your client was one who actually filed the notes applying which probably was his obligation or his the company's obligation did your client disclose that the person who was injured mr blue was in fact not an employee of your class a the claim was originally denied for that basis put in there that this is not an employee of mine in didn't say that he was obligated by workman's comp at the nd part of what you just said i'm not certain of that frankly i don't remember that know the answers i really don't remember i i don't think the original application says asean employer statutory employee i do remember that during the course of the deposition of the person up in atlanta that  that issue was discussed at some length but your client did issue a paycheck to mr blue approximately a month before the incident my recollection is that he that the apologize to the court for statement my recollect my my good faith recommend record recollection is that mr arpan because of the horrendous injury that mr blue had suffered wrote checks in the idea of  perhaps protecting him from the comp without understanding of course but protecting who from the cop mr blue or from mr blue getting the cop that somebody asked the question about criminal about fraudulent claims that issues never been raised are you concerned about it would i be if i was involved at the time yes or no thank you i've another question if it's ok with gesture you can see that if we look just at the four corners of the complaint that there was no duty to defend here no and why not because big continent if there's a whole bunch of different complaints i was involved in this case up to the last complaint being filed and mid continent saw that the allegations if proven brought we created for them an obligation to defend and they in fact hired a lawyer to defend mr m be backing on that if i could have one more question this year if in fact there was no duty to defend would you agree that there's no duty to indemnify it depends defend you are bound by the four corners of the underlying complaint understood should it turn out that what's proven is different than what's alleged you may have a scenario i'm not saying this is one of those was there because it was hired by the insurance company would have put the insurance company on notice by the way the existence that isn't girls this is what happened during the course of this trial and you better come in here and finish up the fencer case all right start out by dressing up i may the nd argument which is the election of remedies and then going back to the argument regarding the contract you know well let me just tell you can structure your argument the way you see fit they didn't really talk about election of remedies so you're certainly free to raise it if you do i'm going to let them talk about it in their rebuttal argument but not your choice about how to proceed and the reason that's why i'm not to spend a lot of time on election romney's by wanted to address some of the points raised by judge kugler because it is undisputed that over three hundred thousand dollars of benefits were received by mr blue from approximately the date of the accident up to the date we took the deposition of mr trotter from builders insurance company and there was a statement made about this may have been a voluntary payment and that's what i wanted to address that's not the case at all and what makes this case totally distinguishable from the jones case is that in this case mr blue filed a petition seeking benefits when their petition was originally denied in part because of the questions about employment status or what mr arpan said because he originally claimed that he was the direct employer of mr blue the claim was denied and then when they did investigation builders did the right thing they went out and they investigated it's all in this trotters deposition and they determined that mr damon hired a lawyer to look at it they determined that mr blue was a statutory employee and they sent him checks to checks every single month since that time and that represents a conscious decision by mr blue to accept those benefits which he's accepting i presume up to and including today and in fact when we took the deposition of mr blue's girlfriend whenever the check may have been late what did she do she would call and say we're the check and if that doesn't show a conscious attent i don't know what does there's a reference in one of the briefs i forget which one there's a reference to a statement or purported attempt by mr blue to either return the checks or stop the payments that was unsuccessful as the records say about that there is a there is a mr blue testified in his deposition that at one time he tried to return a check he contacted the insurance company and the insurance company told him that the money was rightfully his but what there's no dispute about is that every single one of these checks that were sent were cashed and the one thing about making if you assume what mr blue and for the purposes of appeal i am is true and there is a dispute about that fact but i don't think it's a material fact because he still accepted in cash the checks than under the case law your honor which we cite which is down only which is primarily the  effective election of remedies and the only case that was cited in this is talked about in the brief from the other side is the florida supreme court case of jones and your honor this wasn't addressed in the opening argument but i will just say before moving to the main argument on the contract is that the jones case is clearly distinguishable if you look at the certified question in the jones case the certified question was whether an injured employee who was untitled and received workers compensation benefits but it net but in not pursued the compensation case to its conclusion to later in this is one of the two key facts which makes jones distinguishable d'souza employer for injuries that a rise out of intentional conduct that's what's not barred and if you look at the vlei whole case that is why jones is distinguishable because what the jones court goes on to say is obviously in the workers compensation setting because intentional conduct is not part of worker's comp that's an exception that if someone intends an except for the negligence action the workers compensation benefits that is not an election not to pursue a intentional conduct theory which was not alleged here and was not pursued the nd thing about the jones case and a lot of the cases that are cited in the blue brief is that here you had an actual filing of a petition and collection of benefits were in some of the cases they relied on the the company in those cases unlike here did before petition was even filed made those voluntary payments and the only action in those cases which makes them distinguishable is that they attempted to make a modification is to the amount of the payment and the supreme court and jones and followed by one of the other cases that are cited in my opponent's brief said that's not a conscious selection so the point i want to make here is that the jones case is dokken trolling the vallejo case which is decided after jones adopts the position which i'm arguing here for the workman's comp carrier in this case made payments based on its investigation but without a valid pending petition from mr blue that's not correct honor there was a valid pending petition from the group who denied or dismissed because of the error the petition was dismissed to the undisputed in the in the record that the petition was dismissed because they were paying was dismissed  without prejudice because builders was paying its benefits and there was no need to go to a mediation because the parties were in agreement as to what benefits were wrote a voluntary dismissal is a red herring i'm not saying your argument is wrong i'm just trying to get a vacua clarification normally when a petition is dismissed it's no longer pending so practically you might be right but i just want to get the procedural history correct he did not refile the petition after dismissal exact correct that is correct as it continues to receive benefits there would be no need to do so i know that ok you know that and if i misspoke about that i apologize how you didn't i just wanted to get a clarification i may have and i just wanted to be very careful and let me make sure i understand what are you saying at least i think this might be what you're saying originally a claim was made for workman's compensation benefits not with the coaches to claim to the insurance cover builders it was before it was a formal process initiated by mr blue he were to retain and he signed the petition right and his lawyer was represented by a lawyer by the name of and that's in the record from the mainly from the deposition and that was originally denied correct and it was denied because he was not an actual employee is that what the grounds were given there was something there was some inconsistency is about what builders was told which you highlighted judge cooler they did sufficient investigation because they realized although he was not an actual employee and was a statutory employee and then began to give benefits filed it's as much as i recall the facts and i think i'm correct is the petition was filed it was originally rejected but i don't think another petition was filed i think it's only the one petition that's why he never found  actual climb with the court for workers compensation and that he had had a lot to me the petition in the claim is one of the same he actually affirmatively under took steps to get comp benefits unlike the situation in jones and generally in florida if you're receiving if you're an employee receiving workman's compensation benefits the law of florida in the state is your prohibited from claiming or getting benefits are not been fits but damages as a result of negligent conduct one hundred percent correct in this is they hit this suit was involving negligence an allegation of negligence that's it that's all that's alleged if they turn around and sue you for won't reckless conduct same that would be not barred by the workman's compensation or the fact that that mr blair was a statutory employee of are alleged to be a statutory employ of r r that is not alleged i'm not sure whether that claim would be barred or not at this time since the accident happened in two thousand and ten but that's all the jones case stands for ok but but you doubt judge thankfully led me right into the around the case and the st thing that i want to say to the court is a ramma is not is not an outli and how do we know that because this court in a case involving my client which i was not involved in stephen's versus mid continent casually company rejected the very same arguments made by mr anderson here and the stevens that cited in our brief is a two thousand and fourteen decision and the argument that was raised by stevens who was the injured party there says stevens cites the testimony fritz who stated that he had not entered a contract with acreage which was mid continent insured for the kirkland project the kirkland project would be like the faith deliverance project in this case but the but this evidence does little to further stephen's case as a written contract is not necessary to establish a contract or subcontractor relationship citing that's nobody disputes that part of it because everybody agrees that you can have an unwritten agreement let me finish that the court the th circuit goes i had to state in stevens here the relationship was established through the course of conduct by anchorage and team frets and by the owners last contract or agreement in which anchorage assumed again by pulling the permit the legal position of the they don't talk about whether there was or was not compensation i don't believe that issue was addressed in stevens but here there was a tax letter given and the only evidence about the tax letter is out of court declaration which my opponents claim is admissible under the state of mind but even if you accept it would be before you even get to that he what in the world is the genesis of this tax benefit where does it come from it's testified to about in both mr r prinz deposition and in mr rory or pastor or his deposition it where does this thing come from mr arpan testifies in his deposition that he had spent a substantial time in money assisting the church and that what he did to arrive at the price in the agreement which is a rather odd price but it's twelve thousand and three one hundred and thirty seven dollars when he arrives at that price because he looks at such factors as his overhead the cost of insurance and things of that nature and then he presents that invoice which says construction services including permit ing not i know the details on the nuts and bolts of the invoice in the letter i want to know if there's an answer ok to the legal basis for this thing is this part of the i r s code that if you provide services to a nonprofit you get a tax deduction or some sort of a tax credit or benefit is it based on state law and the state income taxes you have to pay now for any business where does it come from the record is silent on this  i think and i don't think i'm wrong about this either i think mr arpan thought he could it would be helpful on his federal law because i know what he thought i want to know where it comes from because if you agree to consideration which is non existent as a matter of law that adds a wrinkle to this case so for example if you and i agree that you're going to provide legal services for me and my consideration to you is that i promise you to give you blue skies in miami at least several times a week does not a contract i agree that a lot of contrary so play along with me ok i am if arpan request a tax benefit of whatever kind which is nonexistent not available under law whatever law might apply my concern on a general level is where is the consideration for that agreement below we did reference in our motion for summary judgment which the court had before it when it granted the motion is that a tax letter is valid consideration because they add a space to a benefit and the fact that mr arpan may have thought that that tax benefit had absolutely no bend benefit a does not prove that the tax letter that he got which he discussed with rory and then rory had the invoice and then pastor warren gave him the tax letter back that's the evidence that the trial court considered when it granted the motion for summary judgment was no evidence to what's what is the legal basis for saying that attacks letters consideration what we cited in our papers below  was a aced a court case that said that giving a tax benefit letter is valid consideration as long as as long as the tax benefit exists and i can't find anywhere where you get this sort of a credit so habitat for humanity goes out and performs a charitable act by building a home or building an annex to a church it gets to rick question that's probably not a good example because avatar is itself a nonprofit but let's say lowe's decides to donate lumber and services and builds an annex to a church they get to deduct the services and the property and the material they submitted it's not the facts or the facts here is that faith deliverance church no no there are these are the facts here lowe's is arpan ok yes lowe's says i am going to donate lumber services except for a we're going to build an annex to your church we don't want any payment for it they then ask the church for a tax letter for twenty thousand dollars for materials services etc for building the attics the church says i'll give you whatever you want i got some very happy to give you a tax letter yes you provided twenty thousand dollars worth of services here's your letter what does lowe's do with that letter according to the the case law we cited in the brief in the motions for summary judgment below that is valid consideration because that is a benefit because in your example your honor loz is providing a service free l free carpentry whatever and that has a monetary value only if the i r s recognizes it i agree with that but but it if if you if in this particular case the undisputed evidence is that the sales contract and the tax letter existed under the law that's a valid consideration the only evidence you have to the contrary is not that it's invalid that's i mean i've met my burden of proof it's not that it's invalid it's an out of court declaration by an accountant who allegedly told mr arpan that it wasn't worth the paper it was printed on are what about it's not that's not an issue that does not in a create an issue of fact ok nd question with regards to that invoice and the letter they post date the accident in this case what is the relevance of that if any to comment your honor number one is that in the stevens case there was also not  contemporaneous contract and still the court found that big continent in that case was entitle to summary judgment number one number two is is that the contract and what was going on between our pin and pastor or even though it was post accident it was still one of the job was ongoing and i have there was no case law cited in my opponent's brief we we don't believe that as long as there is a meeting of of the minds and that the testimony be true nori in arpan was a meeting of the minds as here's the invoice here's the tax letter the fact that it was after the accident we could find no case that says that that has any legal significance and in would suggest to the contrary are i misremember we've taken you way over time but we thank you very much a fake you very much as well jordan we haven't found any case neither have they that says you can create an ex post facto consideration that is close to relate back in time to the time of this accident what thousand and eight because that's when the permits were st pull the accident in this case occurred in july two thousand and ten and it was not until october th two thousand and ten several months after the accident that don arpan as his deposition which i read to you already shows came up with the idea unsolicited just came up with the idea that hey you know what maybe i can get a tax break so he sends this so called invoice to faith or whatever and church and pastor henri it's by the way that the so called tax letter is unsigned testifies he doesn't even know who sent him the invoice and he also what's also important here is that in his deposition mr arp in testifies that the actual content this where someone does something for a charity is it not oftentimes the consideration that the entity is attempting to build its own book of business or perhaps it's  building reputation and it's and i think there was some evidence perhaps of although i don't know it was argued the district court of being introduced to the members of the congregation is this is our general contractor that's perhaps billing business  the whole idea of tax benefits when you give services to a not for profit like this isn't isn't those undisclosed things the reason why our court oftentimes does not even go back and look at consideration well your hon and hard evaluate i respectfully disagree in this case the burden was on mid continent to sustain their burden of proof on summary judgment it was their burden to prove that this was a legit valid tax benefit which the judge eroni asli concluded so i don't think it should be incumbent upon us to divine what this was especially when the two participants to this so called agreement  never even was mentioned or thought about before the accident in this case occurred i mean let me jump you to a different thing as well isn't it true that your client can't or can't succeed in this in a suit against arpan for negligence allowed in other words not intentional conduct reckless conduct if your client is found to receive workman's comp sation benefits no because in the jones case which we cite and incidentally my opponent's wrong jones is not limited to intentional tort cases we cite the vasquez case which is subsequent to jones is from the st just record of appeal issue and it does not constitute proof as a matter of law that there was a conscious deliberate attempt to choose workers compensation benefits over a tort action which is what we have here what it seems to me that someone's decision to accept benefits is highly probative whether or not that person has chosen to go go down that road as opposed to a road d of filing a tort law suit you know those things are both occurring at the same time your honor the original lawsuit was filed several years ago and like i've mentioned before the workers comp insurance carrier in his case knows exactly what is happening here and the positions that parties have been taking there's no there's nothing shady going on respectfully so what we think is at the very least th should be a jury issue to determine these are matters of intent so it should be something that should not be determined as a matter of law and summary judgment and as not to be bring up another issue to the trial judge never addressed the election of remedies issue in light of its other holding so based on everything that i've said today mr weiss is said and what we said in the breeze we respectfully request that the summary judgment and judgment  on it be reversed thank you i thank you all very much