07-0410 CRUM SERVICES and FRANK WINSTON CRUM INS. v. RUBEN ALBERTO SOTO LOPEZ

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State: Florida

Court: Florida First District Court

Docket No: 07-0410

Case Date: 03/06/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA CRUM SERVICES and FRANK WINSTON CRUM INSURANCE, Appellants, v. RUBEN ALBERTO SOTO LOPEZ, Appellee. _____________________________/ Opinion filed March 6, 2008. An appeal from the Judge of Compensation Claims. Gerardo Castiello, Judge. Juliana L. Curtis of Dixon & Associates, Tampa, for Appellants. Kristin J. Longberry of Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for Amicus Curiae Florida Association of Professional Employer Organizations. Jane-Robin Wender of Wender & Associates, P.A., Lake Worth, for Appellee. CASE NO. 1D07-410 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

THOMAS, J. This appeal involves a dispute between an injured worker ("Claimant"), his employer, Porto & Garcia Roofing ("P&G Roofing"), and P&G Roofing's employee leasing company, Crum Services ("Crum"). Claimant was injured while working on

a roofing project for P&G Roofing, and we are asked to determine which entity is legally responsible for compensating Claimant for his injuries. We disagree with the findings of the Judge of Compensation Claims (JCC) that Claimant was an employee of Crum, and reverse. Crum, a professional employer organization, provides leased employees to its clients. Specifically, Crum enters into contractual agreements to provide payroll services and workers' compensation benefits for the employees it leases to its clients. Claimant sought compensation for his injury. At trial, evidence was presented that Daniel Del Sol offered Claimant a job on the spot with P&G Roofing to perform manual labor on a roofing job at the rate of $80 per day. Claimant never filled out any paperwork for Crum, P&G Roofing, or any other entity. On May 26, 2005, after working for three days, Claimant suffered a broken ankle when the ladder on which he was standing slipped and fell. According to Claimant, Mr. Del Sol took him to the doctor and a follow-up orthopedist appointment, paid for both appointments, and promised Claimant he would be paid $200 per week for missed time from work. Claimant was unable to return to steady work until September 2005. The only remuneration Claimant received was $175 for his three days of work, paid directly by Mr. Del Sol.

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Testimony from both Mr. Del Sol and a P&G Roofing representative1 established that Mr. Del Sol was an employee of P&G Roofing at the time of the accident, and that P&G Roofing had pulled the permits for the job. Although Mr. Del Sol testified that he had authority to hire workers on behalf of P&G Roofing, the P&G Roofing representative acknowledged that any employee hired on its behalf is required to fill out certain documents in order to be considered an employee of Crum. In fact, the contractual agreement entered into between P&G Roofing and Crum specifically states that Crum's services will be provided to any employee of P&G Roofing who qualifies as a "Leased Employee." In order to qualify as a Leased Employee, the agreement states that an employee must complete an employment application, W-4 withholding form, and Form I-9, and that these forms "must be delivered to us [Crum] before the employee commences employment." Furthermore, the agreement specifically provides that P&G Roofing "assume[s] full responsibility for workers' compensation claims of other Parties hired by or working for you, whether as an employee, independent contractor, or in any other status." After hearing the testimony of the parties, the JCC found that P&G Roofing, as the general contractor on the worksite, is statutorily responsible for providing
Despite being legally noticed and subpoenaed, P&G Roofing has not participated in this lawsuit in any way, resulting in the JCC certifying contempt proceedings to the circuit court. The evidence in this case comes from the deposition of a P&G Roofing representative in an unrelated case that was admitted into evidence.
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workers' compensation coverage to Claimant. The JCC further found, however, that regardless of the specific language in the Lease Agreement, Crum agreed to "step into the shoes" of P&G Roofing and provide workers' compensation coverage for all of P&G Roofing's employees; thus, Crum is the proper carrier to provide workers' compensation coverage to Claimant. Accordingly, the JCC ordered Crum to provide a primary care physician, temporary partial disability benefits, and attorneys' fees. We respectfully disagree. There is no question that a general contractor is responsible for providing workers' compensation benefits to any employee of an uninsured subcontractor working on its job site. See

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