Motion,Ex Parte: JOHN HUGHES, III ET AL VS ROMAN FLICKER ET AL

On February 06, 2019 a Motion,Ex Parte was filed involving a dispute between Flicker Construction Inc., Hughes, John, Iii, and Flicker, Roman, Mid-Continent Casualty Company, for Contract & Indebtedness in the District Court of Miami-Dade County.

Preview
Filing # 145343112 E-Filed 03/09/2022 09:27:22 AM

IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA

JOHN HUGHES, III, as Receiver of
FLICKER CONSTRUCTION, INC.,

Plaintiff,

v. CASE NO.: 2019-003916-CA-01

ROMAN FLICKER and MID-CONTINENT
CASUALTY COMPANY,

Defendants.
/

PLAINTIFF’S MOTION FOR ENTRY OF CORRECTED ORDER

Plaintiff, JOHN HUGHES, III, as Receiver of FLICKER CONSTRUCTION, INC., hereby

moves for entry of a corrected version of the Court’s Order Granting Plaintiff’s Motion for Entry

of Final Summary Judgment, and in support states:

1. On January 10, 2022, this Court entered its Order Granting Plaintiff’s Motion for

Entry of Final Summary Judgment (“Order”), attached as Exhibit A.

2. Read in its entirety, the 14-page order contains two sentences which, in context, do

not appear to say what the Court intended them to say. Although neither error impacts the Court’s

ultimate conclusion, in an abundance of caution and to avoid potential confusion on appeal,

Plaintiff now moves for entry of a corrected order.

3. As the Court will recall, this is a breach of contract action brought by Plaintiff, John

Hughes, as Receiver of Flicker Construction, Inc., against Flicker’s liability insurance carrier, Mid-

Continent Casualty Company (MCC), following entry of a judgment against Flicker in the

underlying case styled Perea v. Flicker Construction, Case No. 10-58782CA02, in the Circuit

Court of the 11th Judicial Circuit, in and for Miami-Dade County, Florida.

1
4. Following several years of litigation, the parties filed competing motions for

summary judgment. 1 This Court ultimately found in favor of Plaintiff, determining MCC has a

duty to indemnify Plaintiff for the judgment entered against Flicker in the underlying case. See

Ex. A. In short, the Court found that “Flicker could not be a contractor under Section 440.10, of

the Florida Statutes, because he had no contract with the restaurant owners.” Ex. A, p.6.

5. As the Court noted in its Order, its analysis could have stopped there. Nevertheless,

the Court addressed MCC’s other arguments in the remaining seven pages of the Order. It is within

these additional pages (which are effectively dicta) that the two apparent errors appear:

a. First, on page 9, after recounting how the evidence demonstrated Jimenez was not

a representative of Flicker, the Order states: “a reasonable jury could find that

Jimenez was not on the job site in representation of Flicker.” In context, it would

appear the Court intended to say: “a reasonable jury could not find that Jimenez

was on the job site in representation of Flicker.”

b. Second (and similarly), on page 13, the Court states: “a reasonable jury could find

that it was Jimenez and not Flicker who had the status of general contractor.”

Again, in context, it appears the Court intended to say: “a reasonable jury could not

find that it was Flicker who had the status of general contractor.”

6. In sum, although neither error impacts the Court’s ultimate conclusion in its Order,

Plaintiff believes correction of the errors may alleviate potential confusion on appeal. However,

even if the Court declines to enter a corrected order, the Court should still enter final judgment in

1
A detailed factual background is not necessary to resolve the narrow issue before the Court. To
the extent the Court wishes to review a more detailed background, the first five pages of the Court’s
Order (Ex. A) contain an extensive account of both the procedural history and factual background.
2
favor of Plaintiff as outlined in Plaintiff’s Renewed Motion for Entry of Final Judgment, in

accordance with the Court’s determination MCC has a duty to indemnify Flicker.

WHEREFORE, Plaintiff respectfully requests the Court enter a corrected version of its

January 10, 2022 Order, as outlined above, along with any further relief this Court deems

appropriate.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically

filed and furnished by e-mail to Edward T. Sylvester, Esq., Kevin Vannatta, Esq., and Kathryn

L. Ender, Esq., Edward.Sylvester@lewisbrisbois.com, Kevin.Vannatt@lewisbrisbois.com,

Kathryn.Ender@lewisbrisbois.com, and Jessica.SanMartin@lewisbrisbois.com, Lewis Brisbois

Bisgaard & Smith, LLP, 110 S.E. 6th Street, Ste. 2600, Fort Lauderdale, FL 33301; and James H.

Wyman, Esq., Ronald L. Kammer, Esq., and Pedro E. Hernandez, jwyman@hinshawlaw.com,

aromero@hinshawlaw.com, rkammer@hinshawlaw.com, dphangsang@hinshawlaw.com,

phernandez@hinshawlaw.com, and msinclair@hinshawlaw.com, Hinshaw & Culbertson, LLP,

2525 Ponce de Leon Boulevard, 4th Floor, Coral Gables, FL 33134, on this 9th day of March,

2022.

/s/ Daniel Greene
BRENT STEINBERG
Florida Bar No.: 0085453
DANIEL GREENE
Florida Bar No.: 1003266
SWOPE, RODANTE P.A.
1234 E. 5th Avenue
Tampa, FL 33605
Tel: (813) 273-0017
Fax: (813) 223-3678
Team5eservice@swopelaw.com
eservice@swopelaw.com
Attorneys for Plaintiff

3
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA

JOHN HUGHES, III, as Receiver of
FLICKER CONSTRUCTION, INC.,

Plaintiff,

v. CASE NO.: 2019-003916-CA-01

ROMAN FLICKER and MID-CONTINENT
CASUALTY COMPANY,

Defendants.
/

PLAINTIFF’S MOTION FOR ENTRY OF CORRECTED ORDER

EXHIBIT A
Filing # 141716327 E-Filed 01/10/2022 08:59:33 PM

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

CASE NO: 2019-003916-CA-01
SECTION: CA27
JUDGE: Oscar Rodriguez-Fonts

John Hughes, III et al
Plaintiff(s)

vs.

Roman Flicker et al
Defendant(s)
____________________________/

ORDER GRANTING PLAINTIFF’S MOTION FOR ENTRY OF FINAL SUMMARY
JUDGMENT

THIS CAUSE came before the Court on (1) Plaintiff’s Motion for Entry of Final Summary
Judgment and (2) Response in Opposition of Motion for to Motion for Entry of Final Judgment
and Incorporated Motion for Reconsideration of July 30, 2021 Order. This Court heard this
matter on September 22, 2021, and having considered and being otherwise advised in the
premises, hereby finds as follows:

I. Procedural History
On June 21, 2019, Defendant filed “Mid-Continent Casualty Company’s (“MCC”)
Motion for Summary Judgment.” In that motion, Defendant argued that Flicker Construction was
the general contractor of the project, and as such, the statutory employer of Mr. Perea.
Therefore, MCC asserted there was no coverage under its workers’ compensation and employee
liability policy exclusions. On September 20, 2019, the Court entered an Order Denying
Defendant’s Motion for Summary Judgment without prejudice. On October 10, 2019, Plaintiff
filed a “Motion for Partial Summary Judgment on Defendant MCC’s Duty to Defend,” arguing
that because there was ambiguity as to the relationship between Flicker Construction and Mr.
Perea, MCC had a duty to defend. On April 15, 2020, MCC also filed a Cross Motion for
Summary Judgment on Plaintiff’s Amended Complaint. The Court heard the party’s arguments
on April 22, 2020, and on June 15, 2020, entered an Order granting Plaintiff’s “Motion for
Partial Summary Judgment on Defendant MCC’s Duty to Defend and Denying MCC’s Cross
Motion for Summary Judgment on Plaintiff’s Amended Complaint.” Subsequently, MCC filed a

Case No: 2019-003916-CA-01 Page 1 of 14
(1) Motion for Reconsideration of Order Granting Plaintiff’s Motion for Partial Summary
Judgment on the Duty to Defend, and (2) Renewed Cross-Motion for Summary Judgment on the
Duty to Indemnify, once again arguing that because Roman Flicker (“Flicker”) pulled the
building permits, this made him the general contractor as a matter of law. On July 30, 2021, this
Court entered an Order denying MCC’s (1) Motion for Reconsideration of Order Granting
Plaintiff’s Motion for Partial Summary Judgment on Duty to Defend and (2) Renewed Cross-
Motion for Summary Judgment on the Duty to Indemnify and Order Granting Plaintiff’s Motion
for Partial Summary Judgment on Defendant MCC’s Breach of the Duty to Defend.

Subsequently, Plaintiff filed a motion for final judgment, pursuant to the Order entered on
July 30, 2021. Defendant moved for reconsideration of the Order entered on July 30, 2021.
Therefore, on August 23, 2021, this Court entered an Order Granting in Part and Denying in Part
MCC’s Response in Opposition to Motion for Entry of Final Judgment and Incorporated Motion
for Reconsideration of July 30, 2021. In this Order, the Court specifically denied MCC’s Motion
for reconsideration as to the duty to defend, as the Court once again found that MCC had a duty
to defend. As to the duty to indemnify, the Court granted MCC’s Motion, in order to afford the
parties an opportunity to be heard on the issue of whether or not final judgment should be
granted on the duty to indemnify. On August 23, 2021, the Court entered a separate ruling,
deferring a ruling on Plaintiff’s Motion for final Summary judgment.

On September 22, 2021, the parties appeared before the Court again on Plaintiff’s Motion
for Entry of Final Judgment. Plaintiff argues that (1) the Court cured the lack of notice issue
raised by MCC after the July 30, 2021, Order was entered; (2) MCC had not filed any further
record evidence, motions, or requested additional time, as of the date of the hearing; (3) the
arguments raised by MCC have been the same arguments that MCC has raised for the last six
years; (4) the Court has already denied Defendants motion three times; and (5) there is no
genuine issue of material fact, because the Court has previously held that Flicker cannot be the
statutory employer, unless it had a contract with the restaurant owners to perform work and then
sublet a portion of that work to another person, which was not the case. MCC on the other hand
argues that (1) as of the date of the hearing, Plaintiff has not specifically requested summary
judgment; (2) the policy exclusions apply and as such bar coverage; (3) the relevant issue is
whether Flicker, was the general contractor and not a statutory employer; (4) Flicker
Construction was required to obtain workers compensation insurance, which made it the
statutory employer; and (5) the testimony and building records prove that Flicker Construction
was the qualifier contractor on the application.

Case No: 2019-003916-CA-01 Page 2 of 14
II. Pertinent Policy Exclusions
Worker’s Compensation Exclusion: The insurance policy does not apply to
“any obligation of the insured under a workers’ compensation, disability benefits
or unemployment compensation law or any similar law.”

Employee Liability Exclusion: The insurance policy does not apply to:

Bodily injury to:

1. An employee of the insured arising out of and in the course of (a)
Employment of the insured or (b) Performing duties related to the conduct
of the insured’s business; or

2. The spouse, child, parent, brother or sister of that “employee” as a
consequence of Paragraph 1 above.

This exclusion applies whether the insured may be liable as an employer or in any
other capacity and to any obligation to share damages with or repay someone else
who must pay damages because of the inquiry. This exclusion does not apply to
liability assumed by the insured under an “insured contract.”

III. The testimony
Moises Tacle, one of the owners of the restaurant where Mr. Perea’s accident occurred,
testified that a friend recommended Rafael Jimenez (“Jimenez”), to do the construction work at
the restaurant. Tacle’s Depo., pg. 33. He also testified that he met Jimenez at the job site; paid
Jimenez directly; hired Jimenez to perform the renovation work; did not hire anyone else to
perform any of the work at the restaurant; provided Jimenez with access to the restaurant; and
did not provide anyone else with keys to the work site. Id. at 38, 43, 56-58 (the Deponent
sometimes referred to Rafael Jimenez as Ralph Jimenez; however, when he first disclosed a
name, he disclosed the name Rafael Jimenez). Karina Baquerizo, the wife of Moises Tacle,
another owner of the restaurant, testified that she signed a contract with Jimenez and his
company Century Wide, for the construction of the restaurant. Baquerizo’s Depo., pg. 43. She
also testified that Jimenez was the only individual she remembered and that he was the only

Case No: 2019-003916-CA-01 Page 3 of 14
person she and her husband spoke to for the job. Id. at 43, 45.

Flicker testified that he was Worker’s Compensation exempt. Flicker’s Depo, pg. 19.

Flicker also testified that (1) the permit applications were filled out by Jimenez; (2) he signed the
applications; and (3) he pulled the construction permit for the restaurant job as a favor for
Jimenez. Id. at 37, 45, 48. Flicker further testified that (1) he never met Mr. Perea or conducted
business with him; (2) he was not involved in the whole project; (3) did not hire anyone for the
job; and (4) it was Jimenez who hired Mr. Perea. Id. at 11, 54. Furthermore, Flicker testified
that he did meet the restaurant owners once; however, he stated that (1) this was a casual
meeting; (2) Jimenez was also present at the meeting; (3) this was the only time he was present at
the restaurant; and (3) although he glanced at the plans, he did not create the plans. Id. at 36-37,
39, 57, 73.

Flicker also testified that (1) this project was the first time he and Jimenez worked
together; (2) neither he or his company received compensation for the project; (3) he was not in
charge of supervising the project; (4) he did not have keys to the project; and (5) he did not
supply any tools or materials for the project. Id. at 56-57, 62, 81-83. When asked “[w]ould you
agree that Mr. Jimenez was the one who was functioning as a general contractor for this
project?” he answered, “[t]hat was my assumption.” Id. at 80. Flicker also testified that he
believed there was an agreement with the restaurant owners for the job, but that this agreement
was between the restaurant owners and Jimenez. Id. at 80. Regarding the conversations with
Jimenez and him as to the status of the project, Flicker categorized these conversations as
friendly and casual conversation and not as business communications. Id. at 104-05.

Jimenez testified that this was not the first time he and Flicker worked together. Jimenez
Depo.,12-13. Jimenez also testified that he and Flicker reviewed the plans and that they both
agreed on a price. Id. at 16. However, he also testified that it was Flicker who put the price, as
he was not qualified to do that, because he was not the contractor. Id. Jimenez further testified
that it was Flicker who generated a contact with the restaurant owners and that Flicker went to
the job site a couple of times. Id. at 17, 38. Jimenez also testified that his job was to verify that
the job got done, but that at all relevant times, it was Flicker who was the contractor. Id. He also
testified that he went to the job site every day and that he had the keys to open and close the
door. Id. at 30, 32. When asked if he had hired Mr. Perea, on behalf of Flicker, he testified that
he did not hire him on behalf of Mr. Perea, but that instead he hired him because the job needed
to be done.

Case No: 2019-003916-CA-01 Page 4 of 14
Mr. Perea testified that an employee of Jimenez informed him of the job opportunity at
the restaurant and that he met with Jimenez in order to get the job. Perea’s Depo., 23-24. He
further testified that it was Jimenez who provided him access to the restaurant on his first day of
work. Id. at 36. Mr. Perea also testified that for him

[Jimenez] was the owner of that project and he presented himself as a contractor
for that project . . . . By saying I have a project to be done and I need you to do
this job. . . . He supplied all of the materials. He would go and purchase all of the
materials. I once accompanied him to buy materials. He paid directly with - -
sorry. He paid directly with his card. He paid me directly to my - - he paid me
directly to my - - he paid me directly with a check of is.

Id. at 27-28. He further testified that when he and his business partner finished the bathroom
floors, Jimenez asked them to do redo a wall for a television that was going to be placed. Id. at
35. Lastly, Mr. Perea testified that his relationship was at all times with Jimenez, as he never
saw or met Flicker. Id. at 43, 67. When asked if he saw Jimenez keep a log of all the items
bought, he answered “no.” Id. at 36.

IV. Contractor Contract
“To be a contractor under [section 440.10(1)(b)], one must have a contractual
obligation to perform some work for another.” Miami Herald Publ’g v.
Hatch, 617 So. 2d 380, 382 (Fla. 1st DCA 1993) (citing Acme Oil v.
Vasatka, 465 So. 2d 1314, 1317 (Fla. 1st DCA 1985)). The party’s
“primary obligation in performing a job or providing a service must arise out of a
contract,” and this primary obligation “refers to an obligation under the prime
contract between the contractor and a third party....” Id.

Dunlap v. CSR Rinker Transp., 978 So. 2d 817, 819 (Fla. 1st DCA 2008). To satisfy the
contractual obligation of Section 440.10(1)(b) of the Florida Statutes, the contract may be
implied. Mitchell v. Osceola County Sch. Bd., 159 So. 3d 334, 336 (Fla. 1st DCA 2015).

Pursuant to Section 440.10(1)(b), of the Florida Statutes, one must have an express or
implied contractual obligation in order to be a contractor. MCC argues that because Flicker
obtained the building permits, this automatically gives him general contractor status. However,
the first step at analyzing general contractor status, is analyzing the governing statute. The
testimony reflects that the restaurant owners entered into a contract with Jimenez and not Flicker.

Case No: 2019-003916-CA-01 Page 5 of 14
Moreover, the facts do not suggest that there was an oral agreement between Flicker and the
restaurant owners. Therefore, based on the testimony and the statute, Flicker could not be a
contractor under Section 440.10, of the Florida Statutes, because he had no contract with the
restaurant owners.

II. Contractor-Subcontractor Relationship
In case a contractor sublets any part or parts of his or her 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 to all such
employees, except to employees of a subcontractor who has secured such
payment.

440.10 (1)(b), Fla. Stat. (2021) (explaining vertical relationship).

The Court in Hammel v. Pittman, 389 So. 2d 1220, 1221 (Fla. 1st DCA 1980), ruled
that there was no “contractor-subcontractor relationship between Century Village East, Inc. and
appellee’s employer, Hammel, because Century Village East, Inc., had no primary obligation
under a contract, which it passed on to Hammel as subcontractor.”

By sublet, the Legislature essentially meant to “underlet,” and the effect
of subletting is to pass on to another an obligation under a contract for which the
person so “subletting” is primarily obligated. See Cuero v. Ryland Group,
Inc., 849 So. 2d 326 (Fla. 2d DCA), review denied, 855 So. 2d 621 (Fla.2003).
Thus, section 440.10, Florida Statutes (2008), is designed to ensure that
employees engaged in the same contract work are covered under worker’s
compensation, regardless of whether they are employees of the
general contractor or any of its subcontractors. See Dunlap v. CSR Rinker
Transport, 978 So. 2d 817 (Fla. 1st DCA), review denied, 991 So. 2d 386 (Fla.
2008); Andrews v. Drywall Enters., 569

So. 2d 821, 823 (Fla. 1st DCA 1990).

Adams Homes of Nw. Florida, Inc. v. Cranfill, 7 So. 3d 611, 613 (Fla. 5th DCA 2009).

Because Flicker and Flicker Construction did not have a contractual obligation with the

Case No: 2019-003916-CA-01 Page 6 of 14
restaurant owners, Flicker and Flicker Construction could not sublet an obligation to Mr. Perea.
However, because MCC argues that the issue of a contract is irrelevant, because by law, Flicker
Construction was the general contractor and thus the statutory employer of Mr. Perea, when it
obtained the building permits, this Order will further analyze this argument.

III. General Contractor Status
Now the question is “[w]hen is an employer deemed to be a general contractor?”
The first standard is the actual work: [i]s the work that claimant is engaged to do
the work of the employer, or is the employer doing the work for someone else?
The second standard is the contract: [i]s there a contract under which the work
is to be done by a general contractor who in turn is subletting a part or
must sublet a part? In order for a company to qualify as a contractor, its
primary obligation in performing a job or providing a service must arise out
of a contract. The second requirement for liability under the statutory
employer section is that a portion of the contract be sublet to a
subcontractor. To sublet is to pass on to another an obligation under a contract
for which the person so subletting is primarily obligated. The lack of a written
subcontract agreement between general contractor and subcontractor has been
held immaterial under the Florida Workers’ Compensation Law because a written
agreement is not necessary to establish a general contractor/subcontractor
relationship. A contractor, whether under a construction contract or other contract
or obligation, which sublets part of its work to a subcontractor, is a statutory
employer of the employees of its subcontractor.

Patrick John McGinley, § 6:6. Who is the employer under the Florida Workers’
Compensation Law?, W. Fla. Pract. Series, (2021 ed. April 2021 updated) (emphasis added).

Consistent with that policy, the court in Orama v. Dunmire, 552 So. 2d 924 (Fla.
1st DCA 1989), concluded that statutory employment status was triggered where .
. . a licensed general contractor obtains permits for a construction project and
undertakes the legal obligations attendant to those permits. In that case, a
general contractor agreed to obtain a building permit for the owner. The
contractor also used his line of credit to obtain lumber for the project, gave the
owner an estimated cost to build the project, visited the site at least three times,
and agreed he was “responsible to the State” and property owner as the procurer
of the permits.

41 No. 10 Construction Litigation Reporter NL 14 (Oct. 2020).

Case No: 2019-003916-CA-01 Page 7 of 14
In the specific context we encounter here—where a licensed general contractor
obtains permits for a construction project and undertakes the legal obligations
attendant to those permits—construing the act broadly means that a licensed
general contractor who obtains permits for a construction project is a statutory
employer under the statute. See Orama v. Dunmire, 552 So. 2d 924 (Fla. Dist.
Ct. App. 1989).

Mid-Continent Cas. Co. v. Arpin & Sons, LLC, 824 Fed. Appx. 644, 649 (11th Cir. 2020)
(emphasis added).

Under Orama, the district court correctly concluded that Arpin was a
“contractor” within the meaning of § 440.10(1)(b). It is undisputed
that Arpin agreed with FDC to serve as general contractor of record on the
construction project by acquiring necessary building permits. Here, as
in Orama, Blue's state court complaint alleged, and “[t]he unrefuted
evidence established ... that an agreement was made with [FDC] whereby
[Arpin] would use his license as a general contractor in order to obtain the
construction permits. [Arpin] thus assumed the legal position of general
contractor for the job.” Orama, 552 So. 2d at 925. “As general contractor
[Arpin] retained the ultimate and overriding responsibility for the job.” Id. at 926.
This made him a “contractor” and a statutory employer under § 440.10(1)(b).8

Id. at 650. (emphasis added).

By contrast, in Orama the contractor had provided the property owner with cost
estimates, lent his line of credit for construction expenses, and visited the site a
handful of times. See Orama, 552 So. 2d at 924. But the Orama court did not
rely on these extra ways in which the contractor was involved to conclude that he
was a statutory employer. See id. at 924–25 (equating Dunmire's agreement
to take the “legal position of general contractor” with his assuming the role
of contractor under § 440.10(b)(1)). The operative fact in Orama, as here, was
that the contractor pulled permits and held itself out as the general contractor
of record.

Id. at 651.

Case No: 2019-003916-CA-01 Page 8 of 14
Defendant argues that the lack of a contract is irrelevant, because as per Defendant, Arpin
and Orama, stand for the position that if a contractor applies and obtains the building permits,
the status of general contractor is automatically inputted on the contractor. However, a reading
of Arpin, Orama, and the above sources interpreting these cases, also support the position that
there must be an initial agreement between a contractor and the owner of the property, that the
general contractor will use his or her license to obtain the building permits and that the contractor
undertakes the legal obligations as to those permits. Therefore, if (1) there is an agreement; (2)
the contractor pulls the records; (3) the contractor undertakes the legal obligations of general
contractor; and (4) he or she holds itself as the general contractor, there is no unfairness in ruling
that the simple fact of pulling the building permits results in general contractor status, because at
all relevant times, there was a mutual agreement that the contractor was going to be the general
contractor.

However, in this case, there is no evidence supporting that there was an agreement
between Flicker and the restaurant owners that Flicker would use his license to obtain the
building permits. While Flicker agreed with Jimenez to obtain the building permits, this
agreement was not with the restaurant owners. As such, the evidence does not support that
Flicker agreed that he or his company, Flicker Construction would be the general contractor of
the project from the inception, unlike in Arpin and Orama. Furthermore, there is no evidence
that Flicker portrayed himself as the general contractor. The restaurant owners testified that the
agreement was with Jimenez; Jimenez was the individual that was always present at the work
site; Jimenez was the individual who supplied the tools; Jimenez was the individual who paid
Mr. Perea; and Jimenez was the only one who had the keys to open and close the restaurant.
Although itcould be argued that Jimenez was at the job site as a representative of Flicker,
because (1) the agreement was made between the restaurant owners and Jimenez; (2) both Mr.
Perea and Flicker testified that they never met each other; (4) Jimenez testified that he did not
hire Mr. Perea on behalf of Flicker, but instead because the job needed to be done; and (5) it was
Jimenez who at all relevant times was present at the job site, had the keys to access to the
restaurant, a reasonable jury could find that Jimenez was not on the job site in representation of
Flicker. Flicker did obtain the building records; however, he did not portray himself as general
contractor and did not agree with the restaurant owners that he would use his license to obtain the
building records. Therefore, this Court once again finds that the simple fact that Flicker obtained
the building records does automatically attribute general contractor status on Flicker.

IV. Qualifying agent
(4) “Primary qualifying agent” means a person who possesses the requisite skill,

Case No: 2019-003916-CA-01 Page 9 of 14
knowledge, and experience, and has the responsibility, to supervise, direct,
manage, and control the contracting activities of the business organization with
which he or she is connected; who has the responsibility to supervise, direct,
manage, and control construction activities on a job for which he or she has
obtained the building permit; and whose technical and personal qualifications
have been determined by investigation and examination as provided in this part,
as attested by the department.

(5) “Secondary qualifying agent” means a person who possesses the requisite
skill, knowledge, and experience, and has the responsibility to supervise, direct,
manage, and control construction activities on a job for which he or she has
obtained a permit, and whose technical and personal qualifications have been
determined by investigation and examination as provided in this part, as attested
by the department.

§ 489.105, Fla. Stat.

In Lake Eola Builders, LLC v. Metro. at Lake Eola, 416 F. Supp. 2d 1316, 1319–20
(M.D. Fla. 2006), the Court stated the following:

[c]onstruing the evidence in the light most favorable to LEB, the Court finds that
LEB has at least created a disputed issue of material fact as to this point. Owens-a
licensed general contractor at all relevant times-signed the contract on behalf of
LEB. (Doc. 5-2 at 37). According to Peetree’s affidavit, Owens supervised and
was responsible for the Four Points project from its beginning. (Doc. 55-2 at 5).
In addition, Owens linked himself to the Four Points project by pulling the
building permit. (Doc. 55-2 at 5). A qualifying agent has a duty to supervise the
organization’s construction projects. Murthy v. N. Sinha Corp., 644 So. 2d 983,
985 (Fla. 1994). When a qualifying agent pulls a permit for a particular project, he
has associated himself with the project, and “has a duty to supervise
construction and not to willfully or deliberately disregard and violate local
building codes.” Hunt v. Department of Professional Regulation, 444 So. 2d
997, 999 (Fla. 1st DCA 1994). Unless another qualifying agent is assigned to
supervise the project or otherwise assumes responsibility, the qualifying agent
who pulled the permit remains obligated to supervise it, even if he states that he
had nothing to do with the project. Id. The foregoing evidence would support a
conclusion that Owens, a licensed general contractor, was responsible for the Four
Points project beginning with the effective date of the contract. As such, that
evidence would support a conclusion that LEB should be considered licensed for
purposes of Section 489.128.

Case No: 2019-003916-CA-01 Page 10 of 14
(emphasis added).

MCC next argues that as a qualifying agent, Flicker Construction had a duty to supervise
the project. While a qualifying agent does have this responsibility, based on the above case law,
this responsibility is imputed to determine compliance with the building codes and about liability
as to an employee. Furthermore, unlike Eola, Flicker did not (1) sign a contract on behalf of
Flicker Construction and (2) supervise the project. It is true that a qualifying agent has a
responsibility to supervise the overall project. However, this responsibility does not equate to
obtaining general contractor status. Liability and general contractor status are two separate and
distinct concepts. Simply because one has liability does not result in anything else but being held
responsible. In this case, the issue is not Flicker or Flicker Construction’s liability as to building
codes, but instead Flicker Construction status as general contractor. It is the status of general
contractor that determines if MCC’s policy is applicable or not. Therefore, the pulling of the
records does result in a qualifying agent having to supervise the construction site, and raises the
possible issue of liability, but this liability is as to a violation of building codes.

V. Obligation of obtaining Worker’s Compensation Insurance
“Any contractor or subcontractor who engages in any public or private construction in the
state shall secure and maintain compensation for his or her employees under this chapter as
provided in s. 440.38.” § 440.10, Fla. Stat.

Under Florida law applicable in this case, an entity is required to provide workers’
compensation when it is an “actual” employer because it employs laborers under
direct supervision and control or when it, as a contractor, sublets part of a contract
obligation to others and thereby becomes a “statutory employer” of the
subcontractor's employees. In this latter instance, whether the subcontractor is an
“independent contractor” or not is irrelevant.

Lingold v. Transamerica Ins. Co., 416 So. 2d 1271, 1272–73 (Fla. 5th DCA 1982).

Worker’s compensation benefits are the exclusive remedy against the employer
for employees who are injured on the job. Consequently, where
the statutory employer secures coverage or ensures that the subcontractor does so,
the statutory employer is immune from suit for the employees' personal injuries.
The obvious legislative intent is to make sure that a person performing

Case No: 2019-003916-CA-01 Page 11 of 14
a contractor’s work, even an employee of a subcontractor, is entitled to worker's
compensation protection from the primary employer if the subcontractor fails to
provide such coverage. See Gator Freightways, Inc. v. Roberts, 550 So. 2d
1117, 1119 (Fla. 1989); Broward County v. Rodrigues, 686 So. 2d 774, 775
(Fla. 4th DCA), cause dismissed by, 690 So. 2d 1300 (Fla. 1997); Miami
Herald Pub. v. Hatch, 617 So. 2d 380, 381 (Fla. 1st DCA 1993. Thus, worker’s
compensation immunity derives from a vertical relationship between a contractor
and its subs. See Chase v. Tenbroeck, 399 So. 2d 57, 60 (Fla. 3d DCA),

Case Info

Case No.

(Subscribe to View)

Document Filed Date

March 09, 2022

Case Filing Date

February 06, 2019

County

Parties

FLICKER CONSTRUCTION INC. Plaintiff
Flicker, Roman Defendant
Grant, Siobhan E. P. Attorney for the Defendant
Hernandez, Pedro E, Jr Attorney for the Defendant
Hughes, John, III Plaintiff
Mid-Continent Casualty Company Defendant
Party Name Party Description
Smith, Matthew Tyson Attorney for the Plaintiff
Sylvester, Edward Thomas, Jr Attorney for the Defendant
Sylvester, Edward Thomas, Jr Attorney for the Defendant
Wyman, James H Attorney for the Defendant
Brent Steinberg Attorneys for Plaintiffs
Brandon Cathey Attorneys for Plaintiffs
Daniel Greene Attorneys for Plaintiffs
David Carlton Attorney
Ronald Kammer Attorney
Robert Rodriguez Attorney
Kevin Vannatta Attorneys for Plaintiffs
Kathryn Ender Attorney
James Hada Attorney
Gregg Steinberg Attorney
Alina Yániz Attorneys for Defendants
Duty Greene Attorney
Jacob Schuster Attorney
Brian Jacobson Attorneys for Plaintiffs
Michael Tomlin
H Diamond Attorneys for Plaintiffs

For full print and download access, please subscribe at https://www.trellis.law/.

Motion,Ex Parte: JOHN HUGHES, III ET AL VS ROMAN FLICKER ET AL

Preview

Related Topics

Case Info

Parties