An H. G. Kagan Caselaw Alert: Notable Appellate & Trial Outcomes
(short of landmark status).
But also: a Landmark to ‘BOLO!’

First, notable appellate outcome:
Regarding: Negotiated Workers’ Compensation Insurance Program (NWCIP), a form of collective bargaining agreement (CBA).
 
Sapp v. Sims Crane & Equip. Co./Bridgefield Cas. Ins. Co., No. 1D2024-0300 (Fla. 1st DCA May 7, 2025); Rehearing denied, June 3, 2025.

 Relevant Facts and Contentions: Claimant appealed JCC’s decision in a case revolving around a Negotiated Worker's Compensation Insurance Program (NWCIP), a form of collective bargaining agreement (CBA), authorized under § 440. 211 Fla. Stat. that divests JCC's of jurisdiction.

 Claimant contended: while there was a NWCIP in existence:

• He, personally, was not shown to have been bound by it, having not entered into it personally (and neither did the employer, directly, he contended), i.e., lack of mutual assent, and,
• Various acts of the employer amounted to a waiver of its right to require claimant's adherence to the CBA (e. g., E/C initiated motion-proceedings immediately following the accident to preserve evidence--before any PFBs--citing the arbitrator's absence and that time was of the essence).

E/C moved to dismiss claimant's subsequently filled PFB's on grounds the NWCIP governed, thereby divesting the JCC of jurisdiction.
JCC agreed and dismissed the PFB's, finding as a preliminary matter he lacked jurisdiction to proceed. Claimant appealed.
 
First DCA Holding; JCC determination he was without subject matter jurisdiction--and that no waiver had occurred—affirmed.  (Usually affirmances are ‘PCA’d,’ i.e., without formal written opinion, but where, as here evidently--the Court believes bench, bar and litigants will benefit from a particular outcome committed to precedent, an opinion will issue, ergo, this bulletin.)
JCC's rejection of Claimant's ‘lack of mutual assent’ argument was affirmed as a simple finding of fact to the contrary, one supported by CSE. (Note: while the legal issue presented simply a "CSE" question, the complex facts were anything but simple: kudos to Robert Griffis for an excellent defense presentation.)

• The JCC correctly determined, first:
  • He had the limited jurisdiction, indeed the "obligation," to ascertain whether he had jurisdiction, and in the exercise of that duty,
  • the JCC correctly determined he had no jurisdiction because "a party's conduct cannot eliminate" the foundational prerequisite of jurisdiction: in short "subject matter jurisdiction is never waivable."

 Brief discussion: The court cited to another fairly recent decision (in which the undersigned also prevailed), one essentially warding off an earlier effort to vest jurisdiction with the JCC via a legal construction which in that case the JCC accepted, leading to reversal: Sims Crane & Equip. Co. v. Preciado, 351 So. 3d 50, 55 (Fla. 1st DCA 2022).
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 BOLO! Normandy Ins. Co. v. Bouayad, 372 So. 3d 671 (Fla. 1st DCA 2023). The Florida Supreme Court heard oral argument on this watershed case June 3. In my view, exceptionally persuasive argument was presented on behalf of the claimant by the esteemed Michael Winer, countered by an excellent argument in defense, put forward by the esteemed Bill Rogner.
The court was highly engaged, with various levels of understanding displayed among the Justices, but one thing is certain, when this case breaks, it will likely be the "case of the (quarter) century!" The undersigned will put out a landmark alert as soon as practical after publication--which may come in a month--or a year (but methinks: in staining to ‘read’ the Court, Claimant seemed to score a few major ‘nods’). BOLO!

 H. George Kagan is once again proud to be part of an Employer/Carrier claims team that, as a system stakeholder, perceives an obligation to defend its vision of the law on behalf of Florida industry, and then does so!