JOSEPH VIERA v. CITY OF LAKE WORTH, FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JOSEPH VIERA, ALICIA VIERA, PAIGE VIERA, JOEY VIERA, LYNN
DEMCHAK VIERA and JOSEPH VIERA AND LYNN DEMCHAK on
behalf of CHRISTOPHER DEMCHAK,
Appellants,
v.
CITY OF LAKE WORTH, FLORIDA, a municipal corporation,
Appellee.
No. 4D16-3172
[November 8, 2017]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Cheryl A. Cacacuzzo, Judge; L.T. Case No. 50-2010-CA-
000606-XXXX-MB (AN).
Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen &
Littky-Rubin, LLP, West Palm Beach, and Ryan J. Wynne of Slinkman,
Slinkman & Wynne, P.A., Jupiter, for appellants.
Glen J. Torcivia and Matthew L. Ransdell of Torcivia, Donlon, Goddeau
& Ansay, P.A., West Palm Beach, for appellee.
GROSS, J.
Section 112.19, Florida Statutes (2015), provides benefits to certain
officers connected with law enforcement. Appellant Joseph Viera, a former
law enforcement officer with the City of Lake Worth, sought section
112.19(2)(h)1. benefits from the City. The circuit court dismissed his case
on the ground that the statute of limitations barred his claim. Because
section 112.19(2)(h)1. creates a statutory entitlement to benefits to be paid
out periodically over time, we hold that the trial court erred in dismissing
the portion of his claim that accrued after January 8, 2006.
Section 112.19 provides benefits to law enforcement officers who are
killed or injured in the line of duty. Section 112.19(2)(h)1. entitles a
catastrophically injured employee and his family to receive health
insurance benefits. That statute provides:
Any employer 1 who employs a full-time law enforcement,
correctional, or correctional probation officer who, on or after
January 1, 1995, suffers a catastrophic injury, as defined in
s. 440.02, Florida Statutes 2002, in the line of duty shall pay
the entire premium of the employer's health insurance plan for
the injured employee, the injured employee's spouse, and for
each dependent child of the injured employee until the child
reaches the age of majority or until the end of the calendar year
in which the child reaches the age of 25 if the child continues
to be dependent for support, or the child is a full-time or part-
time student and is dependent for support. The term “health
insurance plan” does not include supplemental benefits that
are not part of the basic group health insurance plan. If the
injured employee subsequently dies, the employer shall
continue to pay the entire health insurance premium for the
surviving spouse until remarried, and for the dependent
children, under the conditions outlined in this paragraph.
However:
a. Health insurance benefits payable from any other
source shall reduce benefits payable under this section.
b. It is unlawful for a person to willfully and knowingly
make, or cause to be made, or to assist, conspire with,
or urge another to make, or cause to be made, any false,
fraudulent, or misleading oral or written statement to
obtain health insurance coverage as provided under
this paragraph. A person who violates this sub-
subparagraph commits a misdemeanor of the first
degree, punishable as provided in s. 775.082 or s.
775.083.
c. In addition to any applicable criminal penalty, upon
conviction for a violation as described in sub-
subparagraph b., a law enforcement, correctional, or
correctional probation officer or other beneficiary who
receives or seeks to receive health insurance benefits
under this paragraph shall forfeit the right to receive
1 Section 112.19(1)(a) defines employer as meaning
a state board, commission, department, division, bureau, or
agency, or a county, municipality, or other political subdivision of
the state, which employs, appoints, or otherwise engages the
services of law enforcement, correctional, or correctional probation
officers.
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such health insurance benefits, and shall reimburse the
employer for all benefits paid due to the fraud or other
prohibited activity. For purposes of this sub-
subparagraph, “conviction” means a determination of
guilt that is the result of a plea or trial, regardless of
whether adjudication is withheld.
(Emphasis supplied).
Viera suffered catastrophic injuries which rendered him permanently
and totally disabled. Due to his injuries, he separated from employment
with the City as a “disability retiree,” effective June 22, 2001. After
December 10, 2002, Viera had no personal or group health insurance
coverage. Viera reached a workers’ compensation settlement with the City
in 2008. 2
On January 8, 2010, Viera, along with his dependent children, filed a
declaratory relief action seeking (1) a declaration that the City did not
perform its statutory duty of paying for health insurance coverage under
section 112.19(2)(h)1., Florida Statutes; (2) an order directing the City to
pay for future health insurance coverage; and (3) an award of damages for
the money appellant had to pay for health insurance coverage from
December 2002 plus interest.
The City moved for summary judgment based on the statute of
limitations and other grounds. The City argued that Viera’s cause of action
accrued, at the latest, in 2002, when the City ceased paying for his health
insurance premiums; thus, applying the four-year statute of limitations,
the City asserted that Viera had until 2006 to bring the action, so his 2010
complaint was untimely.
The circuit court granted the City’s motion for summary judgment on
statute of limitations grounds. The court expressly declined to reach the
City’s sovereign immunity argument.
Nothing in the record suggests that the City would have satisfied its
section 112.19(2)(h)1. obligation to “pay the entire premium of the
employer’s health insurance plan for the injured employee, the injured
employee’s spouse, and for each dependent child of the injured employee”
by making one lump sum payment. Such a one-time payment would have
been practically impossible to compute because it would have been
difficult to establish Viera’s life expectancy, and payments would have
continued after his death to his wife and children. Government health
2 For the purpose of the summary judgment, the City accepts the statement of
these facts in the light most favorable to Viera.
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insurance benefits are typically paid periodically over time; section
112.19(2)(h)1. contemplates such periodic payments when it states that,
after the death of the employee, “the employer shall continue to pay the
entire health insurance premium for the surviving spouse until remarried,
and for the dependent children.”
Where a “statute impos[es] a continuing obligation to pay benefits,
separate causes of action arise from the failure to make payments that
come due at different times.” Tucker v. John Galt Ins. Agency Corp., 743
So. 2d 108, 112 (Fla. 4th DCA 1999). Thus, the Supreme Court has held
that for statute of limitations purposes, “a cause of action for an insurer’s
failure to pay personal injury protection [PIP] benefits accrued at the time
the insurer breached its obligation to pay, which was 30 days after the
insurer was furnished written notice of a covered loss under the applicable
[PIP] statue. Id. (citing State Farm Mut. Auto. Ins Co. v. Lee, 678 So. 2d
818, 820-21 (Fla. 1996)).
The periodic statutory payment obligation in this case is akin to
contracts involving debts payable by installments. In Bishop v. State, Div.
of Ret., 413 So.2d 776, 777-78 (Fla. 1st DCA 1982) the first district
characterized the relationship between a retired state employee and the
Division of Retirement as a contractual one. Id. at 778. The court held
that for statute of limitations purposes, the underpayment of a retired
employee’s monthly retirement payment would constitute “a continuing
breach of contract,” so that a separate cause of action arose with each
underpayment. Id.; see also Greene v. Bursey, 733 So. 2d 1111, 1114 (Fla.
4th DCA 1999); Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008,
1043-44 (11th Cir. 2014) (applying “continuing violation principle” to a
restrictive covenant running with the land).
Applying Bishop, Tucker, and Lee to this case, a separate cause of
action accrued each time the City failed to make a periodic payment
required by section 112.19(2)(h)1.
Viera filed his case on January 8, 2010. While the four year statute of
limitations had run on any loss prior to January 8, 2006, the statute did
not bar any claims arising thereafter.
We reject Viera’s argument that the City had an obligation to notify him
of the benefits available to him under section 112.19(2)(h)1. Nothing in
section 112.19 imposes a duty on the employer to notify an employee of
his or her rights under the statute.
We do not reach the issue of the City’s sovereign immunity because the
circuit judge did not rule on that basis. Similarly, we have not passed on
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any other issue concerning either entitlement to or computation of
damages under the statute.
Reversed in part and remanded.
WARNER and TAYLOR, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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