Opinion
No. 1D20-689
03-16-2021
Dennis F. SCOTT, Appellant/Cross-Appellee, v. JAMES A. JONES CONSTRUCTION CO., Appellee/Cross-Appellant, v. Central Florida Siding Pros, LLC, Norguard Insurance Company, Southeast Personnel Leasing, Inc., Lion Insurance Company, Packard Claims, Nobles American Services, LLC, Appellees/Cross-Appellees.
Bill McCabe, Longwood, Richard H. Weisberg, Sanford, and Monte R. Shoemaker, Altamonte Springs, for Appellant/Cross-Appellee. Clay L. Meek, Ormond Beach, for Appellee/Cross-Appellant. Mary Frances Nelson of Eraclides Gelman, Fort Myers, and Morgan A. Indek of Eraclides Gelman, Maitland, for Central Florida Siding Pros, LLC and NorGuard Insurance Company, William H. Rogner of HR Law, P.A., Winter Park, for Southeast Personnel Leasing, Inc., Lion Insurance Company, and Packard Claims Administration, Inc., and Jodi K. Middleton of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, and Shari Gegerson Hall of Chartwell Law, Orlando, for Nobles American Services and NorGuard Insurance Company, Appellees/Cross-Appellees.
Bill McCabe, Longwood, Richard H. Weisberg, Sanford, and Monte R. Shoemaker, Altamonte Springs, for Appellant/Cross-Appellee.
Clay L. Meek, Ormond Beach, for Appellee/Cross-Appellant.
Mary Frances Nelson of Eraclides Gelman, Fort Myers, and Morgan A. Indek of Eraclides Gelman, Maitland, for Central Florida Siding Pros, LLC and NorGuard Insurance Company, William H. Rogner of HR Law, P.A., Winter Park, for Southeast Personnel Leasing, Inc., Lion Insurance Company, and Packard Claims Administration, Inc., and Jodi K. Middleton of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, and Shari Gegerson Hall of Chartwell Law, Orlando, for Nobles American Services and NorGuard Insurance Company, Appellees/Cross-Appellees.
Lewis, J.
In this worker's compensation case, Claimant, Dennis F. Scott, appeals and James A. Jones Construction Co. (Jones), the general contractor, cross-appeals the Judge of Compensation Claims’ (JCC) nonfinal order ruling that Claimant was employed by Central Florida Siding Pros, LLC (CFSP), a subcontractor, and statutorily employed by Jones and that neither carried workers’ compensation insurance coverage that would cover him. Claimant and Jones raise three arguments on appeal, only one of which merits discussion. Claimant and Jones argue that the JCC erred in concluding that Claimant was not covered under CFSP's workers’ compensation insurance policy with NorGuard Insurance Company (NorGuard) because the policy was not properly canceled and/or NorGuard was estopped to deny coverage to CFSP based on the doctrine of promissory estoppel. For the reasons stated below, we disagree and affirm.
NorGuard issued a worker's compensation insurance policy for CFSP through Paychex Insurance Agency; neither Claimant nor Jones was a party to the insurance contract. NorGuard issued a notice of cancellation of the policy on January 24, 2018, with an effective date of February 10, 2018. Despite the impending cancellation, Paychex issued a certificate of liability insurance (COI) for CFSP to Jones on February 6, 2018, indicating that the policy went into effect on April 29, 2017, and would expire on April 29, 2018. Claimant's accident happened on April 24, 2018. Any defenses available to CFSP were struck by the JCC because CFSP failed to participate in the litigation below. The JCC ruled that the policy was not in effect on the date of accident because NorGuard had cancelled it for nonpayment of premium two months earlier. This ruling put the risk on the general contractor. See § 440.10(1)(b), Fla. Stat. (2018).
Claimant and Jones argue that the cancellation of the policy was ineffective because the policy contained a condition precedent to cancellation that was not met. Specifically, they claim that the policy gave CFSP the opportunity to pay the unpaid premiums before the policy was cancelled pursuant to language stating that the unpaid premium is "immediately due and payable" when "payroll deduction is terminated or suspended for any reason." On the contrary, that provision is not a condition precedent because it does not expressly condition cancellation on a second nonpayment. See Raban v. Fed. Express , 13 So. 3d 140, 144 (Fla. 1st DCA 2009) (reviewing the JCC's interpretation of a contract de novo, noting that conditions precedent are not favored, and explaining that contract provisions are conditions precedent or subsequent only where the "express wording" of the provision conditions formation and/or performance of the contract on the completion of the conditions).
The policy's only stated condition precedent to cancellation was ten days’ notice to the policyholder: "We must mail or deliver to you not less than ten days advance written notice stating when the cancelation is to take effect. Mailing that notice to you at your mailing address shown in Item 1 of the Information Page will be sufficient to prove notice." That condition was met because NorGuard mailed a notice of cancellation to CFSP at its last known address on January 24, 2018, for cancellation effective February 10, 2018. NorGuard's action satisfied its obligation to provide notice of cancellation for nonpayment of premium under both the policy and the applicable statute. See § 440.42(3), Fla. Stat. (2018) (requiring notice to be mailed to the employer ten days prior to cancellation of workers’ compensation insurance for nonpayment of premium).
Turning to the claim of promissory estoppel, Claimant and Jones contend that NorGuard was estopped from cancelling the insurance policy because Jones relied on the COI. The JCC rejected the claim upon finding that Claimant and Jones failed to prove by clear and convincing evidence that Jones "reasonably" relied on the COI. Claimant and Jones contend that the JCC applied the wrong test because the elements of promissory estoppel do not require the promisee's reliance to be reasonable and instead require mere reliance. Technically, Claimant and Jones are correct.
"Generally stated, promissory estoppel is ‘[t]he principle that a promise made without consideration may nonetheless be enforced to prevent injustice if the promisor should have reasonably expected the promisee to rely on the promise and if the promisee did actually rely on the promise to his or her detriment.’ " DK Arena, Inc. v. EB Acquisitions I, LLC , 112 So. 3d 85, 93 (Fla. 2013) (quoting Black's Law Dictionary). "[T]he doctrine applies when there is (1) a promise which the promisor should reasonably expect to induce action or forbearance, (2) action or forbearance in reliance on the promise, and (3) injustice resulting if the promise is not enforced." Id. at 93, 96 ; see also Centimark Corp. v. Gonzalez , 10 So. 3d 644, 645 (Fla. 1st DCA 2009).
However, the Florida Supreme Court has explained the character of the protected reliance as follows: "The promisor is affected only by reliance which he does or should foresee, and enforcement must be necessary to avoid injustice. Satisfaction of the latter requirement may depend on the reasonableness of the promisee's reliance ...." W.R. Grace & Co. v. Geodata Servs., Inc. , 547 So. 2d 919, 924 (Fla. 1989) ; see also Advanced Mktg. Sys. Corp. v. ZK Yacht Sales , 830 So. 2d 924, 927 (Fla. 4th DCA 2002) (same); Bishop v. Progressive Exp. Ins. Co., 154 So. 3d 467, 468 (Fla. 1st DCA 2015) (noting that "[p]rejudice and whether the promisee's reliance was reasonable are generally questions for the trier of fact").
Accordingly, any error by the JCC in focusing on the reasonableness of Jones's reliance on the COI is harmless because the JCC's finding that any reliance by Jones on the COI was not reasonable is supported by competent, substantial evidence and makes enforcement unnecessary to avoid injustice. As the JCC found, the COI contained two disclaimers, including a confirmation that the document was for "information only," and Jones's sole proprietor was very familiar with such disclaimers.
Claimant's and Jones's reliance on Atlantic Masonry v. Miller Construction , 558 So. 2d 433 (Fla. 1st DCA 1990), and Criterion Leasing Group v. Gulf Coast Plastering & Drywall , 582 So. 2d 799 (Fla. 1st DCA 1991), is misplaced as those cases are distinguishable. Although both cases applied estoppel to cover injured workers, Atlantic Masonry involved an actual policy (albeit issued in error), not a COI, and Criterion Leasing Group involved an effective policy in force on the date of accident that simply did not extend to cover the injured worker. Here, in contrast, there was no policy in effect on the date of the accident because NorGuard had cancelled it for nonpayment of premium. Although Criterion Leasing Group also involved a COI, the opinion did not discuss whether that COI contained multiple disclaimers on its face as did the instant COI, which promised notice "should any of the above described policies be cancelled before the expiration date thereof," but absolved the company from "obligation or liability of any kind" should that promise not be fulfilled. For the foregoing reasons, we affirm.
AFFIRMED .
Ray, C.J., and Jay, J., concur.