CopyCited 27 times | Published | Supreme Court of Florida | 1993 WL 74253
...4th DCA 1991), in which the Fourth District Court of Appeal certified the following question as one of great public importance: DO THE IMMUNITIES PROVIDED BY SECTION
440.11, FLORIDA STATUTES (1983), EXTEND TO A CORPORATE OFFICER WHO ELECTS, PURSUANT TO SECTION
440.05, TO EXEMPT HIMSELF FROM COVERAGE UNDER THE PROVISIONS OF CHAPTER 440? Id....
...However, at the time of the accident, Dobbins was working under the direction of Howard Weber (Weber), a corporate officer of Preferred Enterprise Signs. Weber had elected to be exempt from coverage under the Worker's Compensation Act based on his status as a corporate officer, pursuant to section 440.05, Florida Statutes (1983)....
...orporation within this state, whether or not such services are continuous. However, any officer of a corporation may elect to be exempt from coverage under this chapter by filing written certification of the election with the division as provided in s. 440.05....
...In contrast, the term "employee" in section
440.11 is used in the context of granting statutory immunities provided by the Workers' Compensation Laws. A particular person's immunity from suit is not related to that person's entitlement to make a workers' compensation claim. Section
440.05 explains the method by which corporate officers and other business owners may exempt themselves from workers' compensation coverage....
CopyCited 25 times | Published | Supreme Court of Florida | 1997 WL 213718
...Estate of Carman,
281 So.2d 317 (Fla.1973), does not support a contrary conclusion. Contra Bradford v. Florida Birth-Related Neurological Injury Compensation Ass'n,
667 So.2d 401, 402 (Fla. 4th DCA 1995) (Klein, J., dissenting). In Allen, the Court addressed the section
440.05 notice [3] requirement contained in the 1967 version of Florida's Worker's Compensation Act....
...However, under the "Waiver of Exemption" provision, section
440.04, Florida Statutes (1967), the employer could waive the exemption by obtaining coverage. The employer obtained coverage but failed to post notice of the waiver of exemption in accordance *311 with section
440.05, Florida Statutes (1967)....
...not based on that fact. Rather, it was based on the plain language of section
440.04(3), Florida Statutes (1967), which expressly provided that effective waiver of exemption from chapter 440 is not dependant upon the posting of notice as provided in section
440.05....
...r contract of insurance by the insured and the writing of same by the carrier shall constitute a waiver of such exclusion or exemption and an acceptance of the provisions of this chapter with respect to such person, notwithstanding the provisions of s. 440.05 with respect to notice....
...tion law analogous here. In Allen v. Estate of Carman,
281 So.2d 317 (Fla.1973), an employer with fewer than three employees was not required to have worker's compensation coverage, but did obtain it. He did not, however, post the notice required by §
440.05, Florida Statutes (1967): Every employer who ......
...shall post and keep posted in a conspicuous place or places in and about his place or places of business typewritten or printed notices to such effect in accordance with a form to be prescribed by the commission. He shall file a duplicate of such notice with the commission. Allen,
281 So.2d at 322 (quoting §
440.05, Fla....
CopyCited 19 times | Published | Supreme Court of Florida | 1982 Fla. LEXIS 2564
...or contract of insurance by the insured and the writing of same by the carrier shall constitute a waiver of such exclusion or exemption and an acceptance of the provisions of this chapter with respect to such person, notwithstanding the provision of § 440.05 with respect to notice....
CopyCited 18 times | Published | Supreme Court of Florida
...sions of this chapter, respectively to pay and accept compensation for injury or death, arising out of and in the course of employment, and shall be bound thereby, unless he shall have given prior to the injury, notice to the contrary as provided in § 440.05." "3....
...Waiver of exemption. "(1) An employer or employee who has exempted himself by proper notice from the operation of this chapter may at any time waive such exemption and thereby accept the provisions of this chapter by giving notice as provided in § 440.05....
..."(2) Every employer having in his employment any employee not included in the definition `employee' or excluded or exempted from the operation of this chapter may at any time waive such exclusion or exemption and accept the provisions of this chapter by giving notice thereof as provided in § 440.05, and by so doing be as fully protected and covered by the provisions of this chapter as if such exclusion or exemption had not been contained herein....
...or contract of insurance by the insured and the writing of same by the carrier shall constitute a waiver of such exclusion or exemption and an acceptance of the provisions of this chapter with respect to such person, notwithstanding the provision of § 440.05 with respect to notice." Fla. Stat. § 440.05, F.S.A., deals with notice of waiver of exemption....
...not included in the definition of "employment", and the writing of the same by the carrier, shall constitute a waiver of such exemption and an acceptance of the provisions of Chapter 440 with respect to such person, "notwithstanding the provision of § 440.05 with respect to notice"....
...[2] Until September 1, 1970, the Florida Workmen's Compensation Act was an elective remedy. Pursuant to Fla. Stat. §
440.03, F.S.A., which was repealed by Chapter 70-148, Laws of Florida, both employers and employees were empowered to waive coverage under the Act. For that reason, Fla. Stat. §§
440.04 and
440.05 F.S.A., then in force included provisions relative to nonacceptance of the Act (440.04[1]) and notice of nonacceptance (
440.05[2])....
... "(1) Every employer having in his employment any employee not included in the definition `employee' or excluded or exempted from the operation of this chapter may at any time waive such exclusion or exemption and accept the provisions of this chapter by giving notice thereof as provided in § 440.05, and by so doing be as fully protected and covered by the provisions of this chapter as if such exclusion or exemption had not been contained herein....
...or contract of insurance by the insured and the writing of same by the carrier shall constitute a waiver of such exclusion or exemption and an acceptance of the provisions of this chapter with respect to such person, notwithstanding the provision of §
440.05 with respect to notice." It will be noted that with regard to waiver of exemption by the employer, §
440.04 was not substantially changed in 1970. [3] Fla. Stat. §
440.05, F.S.A., was amended in 1970 (see footnote 1) to eliminate the right of the employee to voluntarily exempt himself from the operation of the Act. The amended section provides: "
440.05 Notice of waiver of exemption....
CopyCited 15 times | Published | Florida 3rd District Court of Appeal
...torneys' fees in connection with this appeal. Affirmed in part; reversed in part. NOTES [1] In order for a proprietor of a business to be covered under a workmen's compensation policy, notice must be filed with the Division of Worker's Compensation, § 440.05(2), Fla....
CopyCited 13 times | Published | Florida 1st District Court of Appeal | 1995 WL 49127
...Under section
440.04, however, a party hiring a person who is excluded from the definition of "employee" under the act may elect to waive such exclusion and accept the provisions of Chapter 440 by giving notice of such election to the Division of Workers' Compensation, as provided in section
440.05, or by obtaining a policy of insurance securing the benefits of Chapter 440 to such person....
...over Lowry, notwithstanding his alleged independent contractor status and the question of whether he was injured outside the scope and course of his employment, or a mailed notice of such election to the Division of Workers' Compensation pursuant to section 440.05....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 14 Fla. L. Weekly 894
...Because we find that venue under the both tort and contract theories is proper in Columbia County, we AFFIRM. SMITH, C.J., and NIMMONS, J., concur. NOTES [1] A corporate officer or sole proprietor may elect to exempt himself from coverage under a workers' compensation policy. See § 440.05, Fla....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1999 WL 454469
...ing him. Hartley responds that Davis is not entitled to any benefits because, at the time of the accident, Davis was a sole proprietor engaged in the construction industry who had filed a notice with the Division of Workers' Compensation pursuant to section 440.05, Florida Statutes (1995), electing to be exempt from the provisions of chapter 440....
...to which Davis might be entitled. However, Hartley contends that it is not liable because of the notice of election to be exempt from the workers' compensation law that Davis had mailed to the Division of Workers' Compensation on December 13, 1996. Section 440.05, Florida Statutes (1995), upon which Hartley relies, provides, in pertinent part, that: (3) Each sole proprietor, partner, or officer of a corporation who is actively engaged in the construction industry and who elects an exemption fro...
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1996 WL 27878
...(1993) *445 (chapter to become effective at "12:01 a.m."); §
373.069(1), Fla. Stat. (1993) (dividing the state into various water management districts at "11:59 p.m."); §
381.00897(2), Fla. Stat. (1993) (access to migrant labor camp or residential migrant housing "between the hours of 12 noon and 8 p.m."); §
440.05(4), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1988 WL 95880
...In determining AWW under section
440.15(5)(b)(1), the deputy commissioner included wages from claimant's concurrent employment as an electrical subcontractor, a business he operated as a sole proprietorship with two employees. He had not elected coverage under the act pursuant to section
440.05....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1989 WL 10987
...
531 So.2d at 1368. This criticism was directed at a number of decisions holding that a claimant's concurrent earnings are not includable in determining AWW if: (1) the claimant received the earnings as a sole proprietor who did not make an election pursuant to section
440.05 Florida Statutes (1987), to be covered under the Act, or (2) the claimant received the earnings from an employer with fewer than three employees....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1995 WL 757878
...aw analogous here. In Allen v. Estate of Carman,
281 So.2d 317 (Fla. 1973), an employer with fewer than three employees was not required to have worker's compensation coverage, but did obtain *403 it. He did not, however, post the notice required by §
440.05, Florida Statutes (1967): Every employer who ......
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2005 WL 607878
...George Kagan, Esquire, Miller, Kagan, Rodriguez and Silver, P.A., West Palm Beach, for Appellants. Michael J. Demarko, Pensacola, for Appellee. PER CURIAM. This case comes to us on appeal from an order of the Judge of Compensation Claims (JCC) finding that the claimant's notice of election to be exempt pursuant to section 440.05(3), Florida Statutes (2001), was invalid because of the lack of an oath as the statute requires. Section 440.05(3), provides that certain construction industry workers can exempt themselves from the requirements of workers' compensation law by mailing a written notice of election to be exempt that is notarized and under oath....
...t contained a statement in which the claimant affirmed that the information contained on the form was true, and he bound himself to the promise that he would secure workers' compensation benefits for himself. The claimant, therefore, took an oath as section 440.05(3) requires, and the JCC erred in ruling that the notice of election to be exempt was invalid....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1988 WL 68080
...defined by Section
440.02(2)(c), Florida Statutes (1979) (the term "employee" shall include a sole proprietor who devotes full time to the proprietorship and elects to be included in the definition of employee by filing notice thereof as provided in section
440.05). Section
440.05(2), Florida Statutes (1979), provides that "every sole proprietor ......
...However, the term "employee" only includes sole proprietors who devote full time to the proprietorship, over which there is no dispute herein, and who elect to be included in the definition of "employee" by filing notice to that effect with the division in Tallahassee per § 440.05(2) (every sole proprietor who elects to be included in the definition of "employee" shall mail to the division in Tallahassee notice to such effect)....
CopyCited 1 times | Published | Supreme Court of Florida | 1970 Fla. LEXIS 2710
...or contract of insurance by the insured and the writing of same by the carrier shall constitute a waiver of such exclusion or exemption and an acceptance of the provisions of this chapter with respect to such person, notwithstanding the provision of § 440.05 with respect to notice.” The above subsection cannot be applied to extend the Florida Workmen’s Compensation Law to other states in which, as here, the State of Florida has no interest and to cases over which the State of Florida has no authority....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...In fact, the insurance policy makes no specific reference to any employees for whom benefits were secured by the policy. Only a partner who devotes full time to the partnership and elects to be included in the definition of employee by filing a notice thereof as provided in Section
440.05, is included in the term "employee". Section
440.02(2)(c), Fla. Stat. (1977). Notice that a partner elects to be included in the definition of employee must be mailed to the Division of Labor of the Department of Commerce in Tallahassee. Section
440.05(2), Fla....
CopyPublished | Florida 1st District Court of Appeal
...ction industry
who elects to be exempt from the provisions of this chapter, as
otherwise permitted by his chapter. Such officer is not an employee for
any reason until the notice of revocation of election filed pursuant to s.
440.05 is effective.
§
440.02(15)(d)8., Fla....
...s who would otherwise be
entitled to workers’ compensation immunity. But that is asking too much of the
benefit derived from the corporate exemption in light of Weber and is inconsistent
with other provisions of the Workers’ Compensation Law. Section 440.05(14),
Florida States (2008), which governs the procedures for election of the corporate
officer exemption, makes clear that the quid pro quo for reduced workers’
compensation premiums associated with the exemption is that the offic...
CopyPublished | Florida 2nd District Court of Appeal | 2007 WL 703561
...ry are considered employees *585 unless they elect to be excluded from the definition of employee by filing written notice of the election with the [Division of Workers' Compensation of the Department of Labor and Employment Security] as provided in s.
440.05." See also §
440.02(13)(d)(8) (providing that an "employee" does not include "[a] sole proprietor . . . who actively engages in the construction industry . . . who elects to be exempt from the provisions" of the Workers' Compensation Law). Section
440.05 sets out the requirements for the election notice....
...pendent contractor status delineated in section
440.02(13)(d)(1). Freundl and Lehmkuhle each completed an affidavit indicating that he was an "owner/proprietor." But merely completing the form does not satisfy the requirements for an exemption under section
440.05(3). That statute provides that the notice of election must be mailed to the Division of Workers' Compensation and that the notice is not effective "until 30 days after the date it is mailed." §
440.05(4)....
...Gold Crest Kitchens,
642 So.2d 624, 625 (Fla. 1st DCA 1994), a person who is a sole proprietor in the construction industry cannot be considered an "independent contractor" unless he or she makes the affirmative election to come within that category as set forth in section
440.05....
...heir affidavits were not legally sufficient to exempt them from the definition of an employee for workers' compensation purposes. See §
440.02(13). In addition, they were required to seek and obtain a valid certificate of exemption as delineated in section
440.05....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 1351, 1990 WL 19943
...Further, although a sole proprietor is not necessarily considered an employee of his own business, it is possible for him to be considered an employee if he devotes full time to the proprietorship and specifically elects to be included in the definition of employee by filing notice as provided in section 440.05....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 651, 1986 Fla. App. LEXIS 6912
under the insurance policy pursuant to F.S. Section 440.-05(2). The policy became effective on October
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 2575, 1999 WL 122891
...Section
440.02(13)(c), Florida Statutes (1995), provided that “sole proprietor[s] ... actively engaged in the construction industry are considered employees unless they elect to be excluded from the definition of employee by filing written notice of the election with the division as provided in s.
440.05.” At the time Mr. Smith filed his notice of election to be exempt, section
440.05, Florida Statutes (1993), provided, in pertinent part: *340 (3) Every sole proprietor ......
...accident. No notice is effective "until 30 days after the date it is mailed to the division ... [unless] an accident ... occurs [in which event] ... notice is effective as of 12:01 a.m. of the day following the date it is mailed to the division.” § 440.05(4), Fla....
...Admin. Code R. 38F-6.012(3). Effective January 1, 1994, the statute changed. Ch. 93-415, § 3, at 74, Laws of Fla. Filings on and after that date effected exemptions that lasted "until the sole proprietor, partner or officer revokes his election.” § 440.05(3), Fla. Stat. (Supp.1994). The amended statute contemplated that a new and different “form to be prescribed by the division,” § 440.05(3), Fla....
...rs’ compensation insurance or a valid certificate of exemption issued by the division. A sole proprietor, independent contractor, partner, or officer of a corporation who elects exemption from this chapter by filing a certificate of election under § 440.05 may not recover benefits or compensation under this chapter....
...In any event, the legislature has recently clarified the statutory language. Section
440.10(g) now provides: A sole proprietor, independent — eentraot&fi partner, or officer of a corporation who elects exemption from this chapter by filing a certificate of election under §
440.05 may not recover benefits or compensation under this chapter....
CopyPublished | Supreme Court of Florida | 1969 Fla. LEXIS 2241
...ployer had rejected the act.” The employer filed a timely application for review, asserting that the compensation order was void because the Judge of Industrial Claims was without jurisdiction because it had filed a Notice of Rejection pursuant to Section 440.05, Florida Statutes, F.S.A., and that such notice had been on file with the Industrial Commission since the year 1954, long before the date of the alleged industrial accident....
...h is attached a copy of the Employer’s Notice to Reject, and afford the parties an opportunity to submit further evidence on the question of whether the employer had elected not to accept the provision of Chapter 440, Florida Statutes, pursuant to Section 440.05, Florida Statutes, and had complied with the requirements thereof with respect to the posting of notice....
CopyPublished | Supreme Court of Florida | 1964 Fla. LEXIS 2576
employee may elect not to come under the act. Section
440.05(2), (3), F.S.A., provides that he may exercise
CopyPublished | Florida 1st District Court of Appeal | 1992 Fla. App. LEXIS 785, 1992 WL 16018
...We decline to so hold and affirm the order dismissing appellants’ complaint with prejudice on the authority of Fink v. Fink,
64 So.2d 770 (Fla.1953) and Key v. Goley,
402 So.2d 80 (Fla. 1st DCA 1981). Appellee had not waived his exemption as an employer pursuant to section
440.05....
CopyPublished | Supreme Court of Florida
...benefits.” This provision was not affected, but by implication was reaffirmed, by the subsequent stipulation which made it clear that the original stipulation was not intended to terminate the claimant’s right to future medical attention. Under Section 440.05, Florida Statutes, an employee may waive all of the benefits of the Workmen’s Compensation Act....
CopyPublished | District Court of Appeal of Florida | 1979 Fla. App. LEXIS 16263
...was a covered employee at the time of her industrial accident. We reverse. In November 1975, Arbuckle, a corporate officer of Casey Key, executed a notice of exemption from coverage under the workman’s compensation law. Sections 440.-02(2)(b) and 440.05(1), Florida Statutes *842 (1975)....
...f “employee”. That section further provides, however, that any officer of a corporation may elect to be exempt from coverage under this chapter by filing written certification of the election with the division as provided in § 440.-05. . . .” Section 440.05(1), Florida Statutes (1975) provides that: Every corporate officer who elects not to accept the provisions of this chapter or who, after electing such exemption, then revokes that exemption shall mail to the division in Tallahassee notice to such effect in accordance with a form to be prescribed by the division....
...Further, Section
440.04(3) provides: A corporate officer who has exempted himself by proper notice from the operation of this chapter may at any time revoke such exemption and thereby accept the provisions of this chapter by giving notice as provided in §
440.05....
...The judge ruled, however, that upon the effective date of the policy issued by Kent Insurance Company, January 12, 1978, Arbuckle was included within the class of persons identified as employees and that in order to be exempt from coverage, it was necessary that Arbuckle file another notice of exemption pursuant to Section 440.05(1)....
...We disagree with the judge of industrial claims’ conclusions that an additional notice of exemption was required to effectuate exemption. Section
440.04(3), Florida Statutes specifically provides that an exemption from coverage may be revoked by giving notice in accordance with Section
440.05....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 1889, 1985 Fla. App. LEXIS 15489
...A policy was subsequently issued by the carrier and claimant timely paid his premiums. Neither the endorsement nor the policy itself listed any individual employee. Claimant never filed any written waiver of the previous notice of exemption from coverage. Section 440.05, Florida Statutes, provides that: r (1) Every corporate officer who elects not to accept the provisions of this chapter or who, after electing such exemption, then revokes that exemption, shall mail to the Division in Tallahassee notice to such effect.... The carrier suggests that § 440.05(1) establishes the exclusive method by which a corporate officer may regain coverage after electing an exemption....
...or contract of insurance by the insured and the writing of same by the carrier shall constitute a waiver of such exclusion or exemption and an acceptance of the provisions of this chapter with respect to such person, notwithstanding the provision of s.
440.05 with respect to notice. *849 (3) A corporate officer who has exempted himself by proper notice from the operation of this chapter may at any time revoke such exemption and thereby accept the provisions of this chapter by giving notice as provided in s.
440.05. The corporate officer provisions of § 440.-05 and §
440.04(3) were enacted in 1974; §
440.04(2) pre-dates those provisions, and it would thus appear that the qualifying phrase “notwithstanding the provision of s.
440.05 with respect to notice” refers to a notice provision, unrelated to the corporate officer election, which was included in §
440.05 prior to 1974 and which is no longer therein contained....
CopyPublished | District Court of Appeal of Florida | 1982 Fla. App. LEXIS 21036
...The first three issues stated by appellants concern the inclusion of Newman’s earnings from self-employment in calculating his average weekly wage. Appellants argue that Newman failed to show that as a partner, he had elected coverage pursuant to Section
440.05(2), Florida Statutes, under the business’s workers compensation insurance policy, and that he thus had failed to establish that he was not excluded from employee status under Section
440.02(2)(c), Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 1969 Fla. App. LEXIS 5898
...Therefore, for the reasons above stated, the final judgment here under review and the post-judgment order be and the same are hereby affirmed. Affirmed. . At the time of the accident in question, the appellant had elected not to be covered by the Florida Workmen’s Compensation Act. See: § 440.05, Fla.Stat., F.S.A.
