Wesco Insurance Company v. James Anthony Casto

Case: 14-10562 Date Filed: 07/30/2014 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10562
Non-Argument Calendar
________________________
D.C. Docket No. 6:12-cv-01492-GAP-DAB
WESCO INSURANCE COMPANY,
a foreign corporation,
Plaintiff-Appellee,
versus
DON BELL, INC., a Florida corporation,
d.b.a. DBI Demolition, et al.,
Defendants,
JAMES ANTHONY CASTO,
individually and on behalf of AC, a minor, and RC, a minor,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 30, 2014)
Before MARTIN, ROSENBAUM, and HILL, Circuit Judges.
Case: 14-10562 Date Filed: 07/30/2014 Page: 2 of 5
PER CURIAM:
James Anthony Casto sued Don Bell, Inc. for damages resulting from
injuries he incurred in a motor vehicle accident while driving Don Bell, Inc.’s
dump truck. Don Bell, Inc. sought a defense and indemnity from its insurer,
Wesco Insurance Company, which brought this action seeking a declaration that
Casto’s injury is covered by Florida’s workers’ compensation statute and thus
excluded from its policy’s coverage. The district court granted summary judgment
to Wesco Insurance Company, holding that Casto was an employee and, therefore,
covered by the workers’ compensation statute and subject to the policy’s
exclusion. We agree.
I.
Wesco Insurance Company (“Wesco”) issued an insurance policy to Don
Bell, Inc. (“DBI”) that excludes from coverage “any obligation for which the
insured or insured’s insurer may be held liable under any workers’ compensation . .
. law.” Casto contends that the exclusion is inapplicable because he was a
volunteer and, therefore, not covered by Florida’s workers’ compensation statute.
He argues that the district court erred in finding that he was an employee because
he produced sufficient record evidence to create a genuine issue of material fact as
to whether he was a volunteer or an employee. Casto also contends that the record
2
Case: 14-10562 Date Filed: 07/30/2014 Page: 3 of 5
evidence was sufficient to create a genuine issue of material fact as to whether he
was a temporary worker and, as such, not subject to the policy exclusion. Neither
of these arguments has merit.
1. Voluntary Worker
Under Fla. Stat. § 440.02(15) (a), an employee is any person who receives
remuneration from an employer for the performance of any work or service. A
worker who “does not receive monetary remuneration for services is presumed to
be a volunteer unless there is substantial evidence that valuable consideration was
intended by both the employer and employee.” Fla. Stat. § 440.02 (15)(d)(6).
When determining whether a worker is a volunteer or an employee, it is the intent
to remunerate that creates the relationship. Fla. Stat. § 440.02 (15)(d)(6).
The district court held that in this case there was substantial evidence that
valuable consideration was intended. Although Casto and Wid Bell, the principal
of DBI, were friends and had in the past exchanged gratuitous services, Casto
testified in his deposition that he expected to be compensated for driving the dump
truck on the day in question. He expected a reduction in the debt that he believed
he owed to Wid Bell, the principal and sole owner of DBI. Bell and the foreman
who hired Casto and directed his work both testified that DBI intended to
remunerate Casto for his services. Bell testified that he would have paid Casto for
his services if Casto wished to be paid. There was no evidence in the record to the
3
Case: 14-10562 Date Filed: 07/30/2014 Page: 4 of 5
contrary. Therefore, the district court concluded that there was no genuine issue of
fact as to whether Casto was an employee and subject to Florida workers’
compensation statute at the time of his injury.
This was not error. No witness testified that Casto was a volunteer or had
agreed to work for free. Casto himself testified that he expected to be paid. DBI’s
representatives testified that they intended that he be paid. Therefore, the
substantial evidence was that Casto was an employee, not a volunteer. As an
employee, Casto was covered by Florida’s workers’ compensation law and “any
obligation” arising under that law is expressly excluded from Wesco’s policy
coverage. Therefore, the district court correctly concluded that Wesco’s coverage
exclusion applies to Casto.
2. Temporary Worker
Casto next argues that the district court erred in not finding that Wesco’s
policy itself did not define him as an employee. He points out that, under the
policy, he was a temporary worker and the policy expressly excludes temporary
workers from its definition of employee. Accordingly, Casto argues, he was not an
employee and was not subject to the policy’s workers’ compensation exclusion.
This argument is irrelevant to the issue of whether Casto was an employee
for the purposes of Florida’s workers’ compensation statute. That status is not
affected by the policy’s definition of “employee” in any way. Whether Casto was
4
Case: 14-10562 Date Filed: 07/30/2014 Page: 5 of 5
an employee – temporary or permanent – is defined by Florida law for purposes of
workers’ compensation. As we have seen, he was an employee under that statute.
Therefore, any obligation DBI may incur under the workers’ compensation statute
is expressly excluded from Wesco’s policy coverage. The district court correctly
concluded that the policy’s definition of employee is irrelevant to the policy’s
workers’ compensation exclusion.
II.
For the foregoing reasons, the judgment of the district court is due to be
AFFIRMED.
5