florida's adoption in the taylor versus admiral insurance company case of this court's reasoning in evanston vs design build and normal us vs design build florida law is crystal clear that when you're dealing with an employment related exclusion such as in this case the workers compensation and similar laws exclusion or the employer's live delivery exclusion in conjunction with a severability or separation of insured provision the actual or statutory employer is excluded from coverage and here since it's undisputed mr massaro who was named as a defendant in the wrongful death suit was not the actual or statutory employer of the deceased neither neither of those two exclusions the workers compensation or the employer's liability exclusion was bar coverage rather the coverage would be excluded for the actual or statutory employer which was also named a defendant in the wrongful death case and that would be rd generation plumbing and then the decision below the court correctly found applying those two clauses that rd generation would not be entitled to coverage it was  generation and not mr massaro which employed mr sanchez paid mr sanchez it paid for the workers compensation coverage for mr sanchez and it paid his the state workers compensation benefits under no circumstances would mr massaro have been considered to be his quote employer unquote and the cases primarily relied upon by the defendants involve cases district court found that the workers compensation exclusion applies not only to the employer but the call employees but if you read the opinion it is clear that the court contrary to what the law is currently ignored the cep separation of severability provision in the policy because the court held quote the workers compensation clause excludes a claim if any insured that it then it refers to the employer in that case and the employee is liable under workers compensation well that is not the law in florida at this point when you have the severability or separation of insured provision each insured it look differently and and this goes really to the heart of the court's ruling if you look at the wording from the worker's compensation clause said very simple clause it said there is no there is no coverage for quote any compensation benefits to to the scene mr sanchez under the florida worker's compensation statute so the the wording of the stat the clause itself isn't applicable to mr m only the actual or statutory employer is precluded from coverage under those provisions not only did they cite evanston with approval i mean they quoted numerous paragraphs at length from evanston and approved the reasoning some instant so evanston is a is in effect through taylor  earlier we believe for law at this point is crystal clear that those provisions apply and when you're attempting to apply the the exclusions you substitute the name of the  even even if he did come within the scope of that exclusion the defendant's position run smack into the the supreme court florida supreme court's decision and morality and what morality does even if you sue an employer and more than and we're not talking about the employer here and the employer comes within the terms of the workers compensation similar loss provision if you will lead in the underlying tort action and exception to workers compensation liability then the exclusion does not apply so the court below got it exactly wrong that the court and the court cited morales but it reached an inappropriate  because we clearly alleged in the complaint in this case because we were aware of their morality case we played an exception to the florida's worker's compensation law in suing both mr massaro and the of sixty days punishment that's where we brought in the the osha regulations that clearly alleged cause of action outside the florida workers compensation law so even if you could consider that mr massaro comes under the exclusion because we allege an exception to the workers compensation law the exclusion would not apply and that's the florida supreme court's decision and morality so based on those arguments your honor we would submit that the court's ruling below was incorrect this case is basically in the same posture as the evanston and the northwest versus designed built case i was counsel of record in that those cases we had an employee a statutory employee who sued the employer and the president of the general contractor just as we did here that case went off on the workers compensate the workers or the brought against the general contractor the plaintiff in that case was an employee of a subcontractor under florida law the general contractor is considered to be the statutory employer of the employees of the sub sub contractor and if you look at the evanston case it clearly says quote mr is a product meets the definition of employee for purposes of the employer's liability exclusion and he was an employee of state received workers compensation benefits that's important right there if i could just stop for a moment this is not a situation where we have someone that claimant suing because there is the  absence of workers comp benefits and so they're suing in tort this is a situation where the employee actually received the benefit of workers compensation and for reasons that we can talk about that is very much different than the other the state's exclusive remedy because of that reason was exclusively under workers comp again state received the benefit of the benefits under under workers comp so that's what makes all the difference in terms of traveling  workers comp the other issue and hearing counsel argued today and i think this was evident from the priest as well is that we would submit that he is arguing to defend based on a counterfactual we would ask the court pervasive and total that he would be considered an employer i'd like to say that again because it's so important was so pervasive in total that he would be considered an employer pursuance of twenty nine u and sixty six c in the following paragraph paragraph sixteen he quoted from the actual statute itself and the statute in pertinent part provided any employer who willfully violence taken to him to task previously on the prior version of the complaint because he tried to argue the criminal conduct exception to workers comp and unity but he failed to allege any specific conduct and he also failed to allege which employer this is all about this specific pleading i would submit to the court that this is not a designed bill situation in design build you had arguments where there was no worker's comp policy to begin with and you had someone who was suing a statutory employer here suing the ca massaro as an actual employer he's saying that almost tantamount to a piercing the corporate veil theory so if the complaint can be read either way with respect to the identity of sanchez's employer why shouldn't we resolve any doubt in favor of the enjoy i would respectfully submit your honor that it can't be read either way that in order to survive another dismissal he has to plead an employer relationship under six hundred and sixty dollars there's simply no way to make a six hundred and sixty claim without alleging an employer relationship now he could have come up with some other statute that had been violated some other criminal statutes but that's not what he did the only way that he was going to survive dismissal yet again was under six hundred and sixty years we highlighted in our brief clearly  unequivocally shows a congressional intent that it only applies to employers so i would submit to the court that he sued as an employer and that's what makes this case very different from all the other cases that we've talked about and i would submit that there's not a single case that we found where you had an allegation against an actual employer against a statutory employer where there was none the less coverage allowed under siege of policy there's just not any precedent for that anywhere and so while massaro is attempting to make this case all about design build and grand pronouncements regarding how the duty to defend might apply in this sort of situation we're asking of applies only to the worker's comp for vision and that we're talking about an employer and a decision policy that has a different definition obviously it's defined by the statute it's by the policy itself instances where someone other than whose name is on say that does you to that employer how does or to watch free workers comp exclusion relative to those individuals the case l you look at someone who is not the direct employer it could be a general contractor and the case law says that they are treated as a statutory employer under workers comp as well as under the policy design was a general contractor the actual claimant was an employee of a sub contractor but nonetheless there is no coverage for the statutory employer so here we can't we can't pick and time because they entered into a consent judgment so there's no possibility for this complaint ever mended the suit as an employer because he had to there was no other way for him to survive dismissal and there was no other way for him to articulate based even on a can be based on an underlying complaint even want to advance of an unfair theory what's your strongest authority to support your position that we should construe the allegations in the complaint suggest that's right your honor so we don't get to make judgement calls about the duty to defend and we cited case law not only from the florida supreme court and the lennox liquor liquors decision also the  te race in case which i had before this court on the do to defend as well where you just take the complaint as it handed to you and so here the complaint alleges in fifteen and sixteen status as an employer and i would submit as an actual employer because you're saying that mice are exercise so much control that he should be elevated to the level of an employer but even if we weren't to say that he was being alleged to be an actual employer then he he wouldn't have nor do i think it would be workable for us to have a situation where we can read out allegations of the complaint specifically when there go to the heart of being able to survive dismissal he sued under six  standards for the do to defend citizen employer we should do anything that tramples on that allegation specifically because it also affects the court's decision in the case below to have given him what i believe was a final opportunity to get his complaint right the other thing too is if the court were to form a firm here it would also affect the congressional intent that we saw in six  party about what a law is a case where we should certify a question to the florida supreme court i don't believe that certification would be necessary  coverage under siege l policy that's for for members of the public that are injured not work site accidents themselves so unless the panel has any questions i would i would ask you to affirm be considered liable for the criminal penalties under osha and we allege that for purposes of osha mr massara would be considered the employer but we clearly alleged in the court found below that's sanchez was an employee of rd generation and the order that's up on appeal the district court concluded that quote the insured massaro in this case is a corporate officer as opposed to one employer unquote clearly employee a rd generation acting in the course and scope of his employment at the time of the accident so the fact that mr massara may be liable as an employer under osha the criminal sanctions applicable to employers doesn't make him an employer for purposes of insurance coverage are two different animals and all you have to do is apply the language of the insurance policy and let's not get away from that and it's and the compensation exclusions as any language from that contract it does it just does not apply to mr massaro and we and it was clearly established in the court below in the court found in its order on appeal which is on appeal that rd generation was the