Miami Herald Publishing v. Hatch

617 So. 2d 380, 1993 WL 116745
CourtDistrict Court of Appeal of Florida
DecidedApril 16, 1993
Docket92-2189
StatusPublished
Cited by22 cases

This text of 617 So. 2d 380 (Miami Herald Publishing v. Hatch) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miami Herald Publishing v. Hatch, 617 So. 2d 380, 1993 WL 116745 (Fla. Ct. App. 1993).

Opinion

617 So.2d 380 (1993)

The MIAMI HERALD PUBLISHING, and Travelers Insurance Company of Illinois, Appellants,
v.
Ralph HATCH and Charlotte Hatch, Appellees.

No. 92-2189.

District Court of Appeal of Florida, First District.

April 16, 1993.

*381 Jerold I. Budney, Miami, for the Miami Herald Pub. Co., William Robinson, Miami, for Travelers Ins. Co., for appellants.

Richard A. Sadow & Suzanne Gorowitz, of Sadow & Lynne, Miami, for appellees.

MICKLE, Judge.

The Employer ("Herald Publishing") and Carrier ("E/C") appealed an order of the Judge of Compensation Claims ("JCC") finding Herald Publishing is the statutory employer of the Claimants, Ralph and Charlotte Hatch, and awarding medical and workers' compensation benefits and taxable costs. We affirm. Section 440.10(1), Florida Statutes (1989 & 1991).

Whether an entity such as Herald Publishing meets the definition of "statutory employer" depends on a determination as to whether the entity has incurred a contractual obligation to a third party, a part of which obligation the entity has delegated or sublet to a subcontractor whose employee is injured. See Roberts v. Gator Freightways, Inc., 538 So.2d 55 (Fla. 1st DCA), approved, 550 So.2d 1117 (Fla. 1989); Motchkavitz v. L.C. Boggs Industries, Inc., 407 So.2d 910 (Fla. 1981); Jones v. Florida Power Corp., 72 So.2d 285 (Fla. 1954). The JCC based the finding of statutory employment on the obligations that arose from Herald Publishing's numerous contracts with its advertisers. The E/C and Claimants stipulated to the following: 1) The Miami Herald is a newspaper of general circulation distributed throughout the state by Herald Publishing, a division of Knight-Ridder, Inc., a Florida corporation. 2) As with most newspaper publishing companies, the operating revenue of Herald Publishing derives primarily from the sale of advertising. 3) Newspaper advertising currently accounts for 78% of consolidated newspaper revenues. 4) Total newspaper circulation, penetration of the market by the newspaper, and delivery of the newspaper and its related advertising products are significant to The Miami Herald's advertisers and the sale of ads. 5) Circulation and delivery of the newspaper is essential to the sale of advertising, and if a newspaper and the related advertisements are not delivered to the readers of The Miami Herald, then Herald Publishing will not have performed for the advertisers a service that the advertisers paid for and expected. 6) Herald Publishing sells and delivers copies of The Miami Herald through several means, including a) delivery to home subscribers, b) sales through dealers (e.g., convenience stores), c) vending machine sales, and d) sales to motorists and pedestrians by street "hawkers." 7) Herald Publishing agrees with its advertisers to use its best efforts to maintain the largest *382 circulation possible for the newspapers in which the advertisers place their ads. The stipulation is replete with evidence that the advertising facet of Herald Publishing's newspaper business is a key element of the business. Accordingly, we find competent substantial evidence supporting the JCC's specific finding:

[The Miami Herald], pursuant to the contract it enters into with its advertisers, has a primary obligation under said contract to "publish" the advertisers['] ads. To publish means to circulate and [The Miami Herald] has undertaken the obligation to circulate and distribute the ads in its newspapers through all the various means and methods of circulation available, specifically including Hawker Distributors.

Because of the circumstances of the Claimants' injuries, our focus is on Herald Publishing's agreements with a number of "hawker distributors" to augment the circulation of its newspapers. The obligation passed on by the newspaper to its distributors arises in part from its contractual duty to the advertisers to use its best efforts to publish, deliver, and sell newspapers with those ads. Effective November 27, 1989, Herald Publishing executed an "Independent Dealer Agreement" with Manuel Lobarinas for newspaper distribution in southeastern Broward County. In turn, Lobarinas hired a number of street hawkers, including Claimants, to sell ("hawk") The Miami Herald on street corners. On February 27, 1990, while hawking the newspaper at an intersection in Hallandale, Ralph Hatch was struck by a police vehicle and sustained injuries. Lobarinas was contractually required by Herald Publishing to carry a workers' compensation policy, but Lobarinas' policy had lapsed at the time of Ralph Hatch's work-related accident, so that no coverage was available for him under said policy. On February 11, 1991, while hawking The Miami Herald, Charlotte Hatch was injured when she tripped over an angle wire. Lobarinas had no workers' compensation coverage on the date of Charlotte Hatch's accident. Claimants filed claims for benefits, alleging Herald Publishing was their statutory employer and, therefore, was responsible for payment of compensation benefits because Lobarinas had no workers' compensation coverage. The claims made other demands, including payment of costs, attorney's fees, and present and future medical benefits. Herald Publishing filed a notice of denial, maintaining that it did not employ Claimants nor was it their statutory employer.

The sole issue presented on appeal is whether the JCC correctly found Herald Publishing to be Claimants' statutory employer. Our inquiry begins with section 440.10, the 1989 and 1991 versions of which cover the accidents of Ralph Hatch and Charlotte Hatch, respectively. Aside from an insignificant division of the statute in 1991 into subsections (1)(a) and (1)(b), the pertinent language is exactly the same in both versions. Section 440.10, Florida Statutes (1991), provides in pertinent part:

(1)(a) Every employer coming within the provisions of this chapter, ... shall be liable for, and shall secure, the payment to his employees, or any physician, surgeon, or pharmacist providing services under [certain enumerated provisions].
* * * * * *
(b) In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation for all such employees, except to employees of a subcontractor who has secured such payment.

The first question is whether Herald Publishing is a "contractor" within the meaning of subsection (1)(b). "To be a contractor under this statute, one must have a contractual obligation to perform some work for another." Acme Oil v. Vasatka, 465 So.2d 1314, 1317 (Fla. 1st DCA 1985). See Motchkavitz, 407 So.2d at 914; Woods v. Carpet Restorations, Inc., 611 So.2d 1303 (Fla. 4th DCA 1992) (condominium *383 association's management and maintenance obligation was "purely statutory" and not contractual, so that its contract with a property management company to perform certain of those statutory duties did not make the condominium association a statutory employer of the management company's employee injured while vacuuming the premises).

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Bluebook (online)
617 So. 2d 380, 1993 WL 116745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miami-herald-publishing-v-hatch-fladistctapp-1993.