#### Loretta WALLACE, etc., et al., Plaintiffs, v. Gary Robert COCHRAN et al., Defendants. Gary Robert COCHRAN, Third-party Plaintiff, v. FLORIDA POWER & LIGHT COMPANY, Third-party Defendant.

No. 77-692.

District Court of Appeal of Florida, Third District.

Aug. 30, 1977.

Rehearing Denied Sept. 30, 1977.

*768David S. Wieder, Miami, for Cochran. Steel, Hector & Davis, Miami, for Florida Power & Light Co.

Before HENDRY, C. J., and PEARSON and HUBBART, JJ.

PER CURIAM.

The Circuit Court for the Eleventh Judicial Circuit of Florida has certified two questions to this court pursuant to Florida Appellate Rule 4.6(a). They are as follows:

> “The foregoing facts raise the following question for certification to the District Court of Appeal, Third District:

> I. WHETHER AN EMPLOYER WHO HAS PAID BENEFITS TO THE SURVIVORS OF A DECEASED EMPLOYEE UNDER THE PROVISIONS OF THE FLORIDA WORKMEN’S COMPENSATION ACT FOR INJURIES SUFFERED BY THE EMPLOYEE DURING THE COURSE OF HIS EMPLOYMENT IS IMMUNE FROM SUIT ON AN INDEMNIFICATION, IMPLIED IN LAW CONTRACTUAL, OR CONTRIBUTION BASIS BROUGHT BY A CO-EMPLOYEE WHO HAS BEEN SUED BY THE DECEASED EMPLOYEE’S SURVIVORS FOR HIS NEGLIGENCE ALONE IN CAUSING THE INJURIES AND DEATH OF THE DECEASED EMPLOYEE WHERE:

> 1. THE CAUSE OF ACTION ARISES OUT OF THE SAME TRANSACTION OR OCCURRENCE FOR WHICH THE EMPLOYER HAS ALREADY PAID BENEFITS TO THE SURVIVORS OF THE DECEASED EMPLOYEE INTO THE FLORIDA WORKMEN’S COMPENSATION ACT, AND

> 2. A CLAIM AGAINST THE CO-EMPLOYEE DOES NOT ARISE OUT OF OR IN ANY WAY INVOLVE ALLEGATIONS REGARDING A DEFECTIVE PRODUCT OR PIECE OF EQUIPMENT.

> II. IF THE ANSWER TO THE PREVIOUS QUESTION IS IN THE AFFIRMATIVE, WOULD SUCH A BAR CONSTITUTE AN UNCONSTITUTIONAL DEPRIVATION OF EQUAL PROTECTION OF THE LAWS AND DUE PROCESS TO THE CO-EMPLOYEE UNDER THE PROVISIONS OF THE UNITED STATES AND FLORIDA CONSTITUTIONS.”

The circuit court has the power to adjudicate the questions. They are not without controlling precedent. It is true that the application of the decided cases to the facts of the pending case may be difficult but their application is the initial burden of the trial judge. See *Schwob Co. v. Florida Industrial Commission,*152 Fla. 203, 11 So.2d 782 (1942); and *Dade County v. Philbrick,*162 So.2d 266 (Fla.1964).

We must, therefore, respectfully decline to answer the questions.

*769HUBBART, Judge,

concurring.

I concur in the court’s disposition of this case solely on the ground that the certified questions presented involve in part a construction of the due process and equal protection clauses of the state and federal constitutions. As such, only the Supreme Court of Florida has the jurisdiction to answer the certified questions.

The law is clear that a question certified by a trial court under Fla.App. Rule 4.6(a) must be addressed to the appellate court which would have jurisdiction to review the case on direct appeal if the trial court decided the question. *Jaworski v. City of Opa Locka,*149 So.2d 33, 35 (Fla.1963). When a trial court construes a controlling provision of the state or federal constitution, the Supreme Court of Florida is invested with exclusive jurisdiction to review the case on direct appeal under Article V, Section 3(b)(1), Florida Constitution.1*City of Orlando v. Cameron,*264 So.2d 421 (Fla.1972); *Robinson v. State,*132 So.2d 3, 5 (Fla.1961). A certified question, which if decided by the trial court would constitute a construction of a controlling provision of the state or federal constitutions, must be addressed to the Supreme Court of Florida and not to a district court of appeal. *Jaworski v. City of Opa Locka,*149 So.2d 33, 35 (Fla.1963); *McGuckin v. Dade County,*121 So.2d 63 (Fla.8d DCA 1960).

We do not have jurisdiction to consider the certified questions in this case because they involve in part a construction of controlling provisions of the state and federal constitutions. If the circuit court passed on these questions, the Supreme Court of Florida would have exclusive jurisdiction to review the case on direct appeal. We, accordingly, lack jurisdiction to answer the certified questions presented in this case.

1

. *“Jurisdiction.*— The supreme court: (1) Shall hear appeals from final judgments of trial courts imposing the death penalty and from orders of trial courts and decisions of district courts of appeal initially and directly passing on the validity of a state statute or a federal statute or treaty, or construing a provision of the state or federal constitution.”