Recently, I authored It's Not that the Wind is Blowin' in preparation for a speaking engagement with the Workers' Compensation Claims Professionals in Bonita Springs. What a great experience, though at a great distance from paradise. The topic was "arising out of" and included some coverage of a vast array of cases now making their way through the world of workers' compensation in the wake of the Florida First District Court decision in Sedgwick CMS v. Valcourt-Williams.
I came away from the discussion with a new appreciation for the confusion that has been wrought in the community by various precedents over the years. Both the majority and dissent in Valcourt-Williams provide an analysis of various precedents. The challenge started with the legislature back in 1935 and the terms "arising out of" and "course and scope of" employment. There was reliance on these standards and court interpretation. Because the legislature had not defined them, there was some confusion. Over time, the terms were periodically conflated, intertwined, and misperceived as synonyms.
The legislature strove to correct some of that. In 1994, the "arising out of" was defined, and interwoven with the "major contributing cause" we have come to know. Despite that change, and our presumption that the legislature must intend change when it makes a change, that definition was largely ignored beginning with Vigliotti v. K-Mart, 680 466 (Fla. 1st DCA 1996). It is a complex path from that decision to not afford effect to legislative change that leads from Vigliotti to Valcourt-Williams, one worthy of study.
The analysis can provide other lessons as well, however. In outlining those "Valcourt progeny" cases making their way through our present, Rodriguez v. Sunrise Landscaping Contractors, OJCC No. 18-028462 (February 9, 2021) reminded me of the court's analysis in Inmon v. Convergence Emp. Leasing III, Inc., 243 So. 3d 1046, 1048 (Fla. 1st DCA 2018). That is not an "arising out of" analysis, but a "stacking of inference" analysis. It is a valuable read for anyone involved in litigation because it cautions us regarding the game of post-office that can come from a house of inferences built on a questionable foundation.
But, there is another lesson in Inmon. When studying Valcourt-Williams, and reading Inmon, the thought that occurred to me was simple: "why isn't Inmon an arising out of case?" The reader will recall that Valcourt-Williams teaches us that there must be an occupational risk that results in injury. The work has to play a role, though there remains room to debate how inferential and how significant that role might be. The progress of the Valcourt Progeny may enlighten us on this point in coming months. Inmon involves a man tragically struck by a motor vehicle late in the evening. He was arguably (there are some legal intricacies) not "at work," but coming from a bar. He was not going to work, but walking to his hotel. He was potentially under the influence.
You cannot sit in a vacuum and make judgment today. Adjudicating the case is the judge's job. The question is not why or why isn't this "arising out of." But, anyone might wonder why wasn't the issue of "arising out of" pled? That is, we cannot question the outcome of the case, but we might validly wonder about the path it took. And, Inmon provides an intriguing lesson in this regard. The employer/carrier prevailed at trial upon the conclusion that intoxication was primarily responsible for the tragic outcome. The District Court explained stacking inferences and reversed the intoxication conclusion. The injured worker's dependents thus prevailed and were awarded benefits.
Why was this not an "arising out of" case? The easy answer is deceptive. It was, allegedly. The argument was raised, was pled. The pretrial compliance questionnaire clearly states the defense "there was no accident arising from the course and scope of the employment with the employer." The "arising out of" was not addressed in the trial order, however. The case was decided at trial on the intoxication allegation. It is possible that there was no emphasis or any evidence/argument at trial on "arising out of." Thus, a perception the argument/defense was waived. It is possible that the argument/evidence on intoxication was such a greater focus, that it overshadowed the "arising out of," which was thus overlooked.
We detour here for a quick reminder of appellate practice. The appellate court will only answer the question it is asked. To make it simple, a party to a case asserts that there was an error at trial, and the court examines that error. Sometimes, it may find a different path and affirm an appealed outcome on other grounds, that is the Tipsy Coachman, see The Role of the Tipsy Coachman (October 2017), a legal decision founded in poetry. Thereby, if the trial judge arrives at intoxication, the court might affirm that even if the judge's path to intoxication is not the path the court sees as efficacious. The court may thus change the path, but it does not generally change the issue (the destination of the path).
The big caution is that appellate courts only consider error that is preserved. To preserve an error, a party must make an objection (at trial). To preserve an error, a party must seek rehearing in response to an order. Rehearing is limited, it is not for re-arguing, but "to seek clarification in matters of law or fact that the judge may have overlooked or misapprehended." If a party does not seek rehearing, then the issues left unidentified are not effectively preserved for the appellate court. Thus, if the trial judge does not address "arising out of," the court is unlikely to address it.
If you are in a boxing match, the referee calls the match and holds your arm in the air announcing your victory, do you interrupt to insist that the ballots are counted to see if you also won based on that alternative? Unlikely. A win is a win, and human nature is likely inclined to take the "w" and walk off the field. But, in this instance, the judge did not adjudicate the "arising out of" (whether it was overlooked, overshadowed, or not addressed in trial). The employer/carrier that prevailed on intoxication did not seek clarification regarding the (seemingly) overlooked "arising out of," and the appellate court reversed the intoxication. The intoxication was by then the only issue preserved for determination. The court is unlikely to look for other arguments or potentials beyond what the parties to a case raise.
Did the accident while walking from a bar to the hotel "arise out of" the work? There is no answer to that. Anyone might conjecture or speculate regarding what the court, or even the trial judge, would have or could have concluded. This would be conjecture as we spectators are not in that trial, to hear that evidence. The point is, there is no answer as it is in the past. This illustrates a difficult challenge for any litigant, upon winning at trial. Should rehearing be sought to obtain clarification on the foundations of various claims or defenses, or should one take the win? Should a judge address all of the plead foundations for a worker's claims and all of the foundations for defense? Or, should the judge address what the parties focus upon at trial?
Hint, this question also has no answer and is subject to nothing better than conjecture. Before one concludes the "best practice," consider that everything, always, looks clearer in retrospect. And, as Paul Simon pointed out in 1973 (Kodachrome): "Everything looks worse in black and white." With the benefit of a "Monday morning" perspective, perhaps . . . much like the licks to the center of a tootsie pop ("the world may never know"). Trials are dynamic, and parties make many strategic decisions there. It is impractical at best to think we might second guess what would have, could have occurred at trial.
That said, with the focus on "arising out of" that Valcourt-Williams has brought to the fore, it is possible that similar accidents to that suffered by Mr. Inmon may lead to litigation. There are "course and scope" analyses (going and coming, bunkhouse rule, etc.), but seemingly these are not part of "arising out of." It is possible that the court may soon provide further guidance on the distinctions between "arising out of" and "course and scope." While the "traveling employee," the "bunkhouse rule," and similar "course and scope" arguments may remain valid analysis, how will "arising out of" change how we think? The future evolution from interpreting this law is fascinating in any event.
