IN THE FIRST DISTRICT COURT OF APPEAL

IN AND FOR THE STATE OF FLORIDA

CASE NO.: 1D20-1165

AMERICAN ZURICH INSURANCE

COMPANY, et al. L.T. Case No.

2018-CA-1388 (Zurich)

Plaintiff/Petitioner, Escambia County

v. Civil Division

STEEL, et al

JAIME SANTACLARA, et al, Consolidated cases:

2018CA001339, 2018CA001340,

Defendants/Respondents. 2018CA001395, 2018CA001397, and

2018CA001773

__________________________________/

PETITIONER’S OMNIBUS REPLY TO RESPONSE OF RESPONDENTS,

IVAN TORRES-CRUZ, ANTHONY WATERS, AND THE

“SANTACLARAS” (JAIME SANTACLARA, ARCELIA ENRIQUEZ, IVAN

SANTACLARA AND SOPHIA SANTACLARA)

TO PETITION FOR WRIT OF CERTIORARI

DERREVERE STEVENS BLACK & COZAD

JON D. DERREVERE, ESQ.

FBN: 330132

E-mail: jdd@derreverelaw.com

Eservice: eservice@derreverelaw.com

MICHAEL B. STEVENS, ESQ.

E-mail: mbs@derreverelaw.com

Eservice: eservice@derreverelaw.com

FBN: 0057466

SHIRLEY JEAN McEACHERN, ESQ.

FBN: 321044

E-mail: sjm@derreverelaw.com

Eservice: eservice@derreverelaw.com

Attorneys for Plaintiff/Petitioner

2005 Vista Parkway, Suite 210

West Palm Beach, FL 33411

Telephone: 561-684-3222

Facsimile: 561-604-3050

Filing # 111513925 E-Filed 08/10/2020 11:01:14 AM

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TABLE OF CONTENTS

Item Page No.

1. Table of Contents………………………………………… ii

2. Table of Citations………………………………………… iii

3. Legal Argument in Rebuttal to Responses and in support

of Granting Petition for Certiorari……………………….

1

Argument…………………………………………………….

THE STAY ORDER CONSTITUTES A DEPARTURE

FROM THE ESSENTIAL REQUIREMENTS OF LAW,

CAUSING IRREPARABLE HARM TO ZURICH FOR

WHICH THERE IS NO ADEQUATE REMEDY ON

APPEAL AND THEREFORE, MUST BE QUASHED….

1

1

4. Conclusion ………………………………………………. 14

5. Certificate of Service…………………………………….. iv

6. Certificate of Compliance……………………………….. v

iii

TABLE OF CITATIONS

Case Law Page No.

Abbey v. Patrick,

16 So. 3d 1051 at 2053 (Fla. 1st DCA 2009)…………………..

1

Aetna Casualty and Surety Co. v. Bortz,

271 So. 2d 108 (Fla. 1972)…………………………………….

2

Bennett v. St. Vincent’s Med. Ctr.,

71 So. 3d 828, 837 (Fla. 2011)………………………………….

3

GMAC Mortgage, LLC v. Pisano,

227 So. 3d 1279 (Fla. 4th DCA 2017)………………………….

4

Helmich v. Wells Fargo Bank, N.A.,

136 So. 3d 763 (Fla. 1st DCA 2014)……………………………

4

Kimbrell v. Paige, 448 So. 2d 1009 (Fla.2009)………………… 2, 7

LaFrance v. U.S. Bank Nat. Ass’n.,

141 So. 3d 754 (Fla. 4th DCA 2014)……………………………

4

Manfredo v. Employers Casualty Insurance Company,

560 So. 2d 1163 (Fla.1990)……………………………………..

12

Nedeau v. Gallagher, 851 So. 2d 214 (Fla. 1st DCA 2003)……. 4

Rogers v. State, 2020 WL 2091121 (Fla. 1st DCA 2020)……… 4

Searcy, Denney, Scarola, Barnhart, & Shipley, etc. v. State,

209 So. 3d 1181 (Fla. 2017)…………………………………….

3

Staffing Concepts Intern., Inc. v. Paul,

704 So. 2d 601 (Fla. 3d DCA 1997)…………………………….

13

Taylor v. TGI Friday’s, Inc.,

16 So. 3d 312 (Fla. 1st DCA 2009)……………………………..

12

14269 BT LLC v. Village of Wellington, Florida,

240 So. 3d 1 (Fla. 4th DCA 2018)………………………………

2, 4, 5

Florida Statutes

§440.30(4)(a)……………………………………………… 1, 2

§440.39…………………………………………………… 2

§440.39(4)(a)…………………………………………….. 2, 3, 5, 6, 7, 8, 12, 15

§604.50…………………………………………………… 5

Florida Rules

Fla. R. App. P. 9.130…………………………………………… 14

Fla. R. App. P. 9.210(a)(2)…………………………………….. v

1

LEGAL ARGUMENT IN REBUTTAL TO RESPONSES

AND IN SUPPORT OF GRANTING PETITION FOR CERTIORARI

THE STAY ORDER CONSTITUTES A DEPARTURE

FROM THE ESSENTIAL REQUIREMENTS OF LAW,

CAUSING IRREPARABLE HARM TO ZURICH FOR

WHICH THERE IS NO ADEQUATE REMEDY ON

APPEAL AND THEREFORE, MUST BE QUASHED.

The Respondents fail to establish good cause as to why the Petition for

Certiorari should not be granted. The Record demonstrates that the Stay Order is in

violation of clearly established law. See Abbey v. Patrick, 16 So. 3d 1051 at 2053

(Fla. 1st DCA 2009) (holding that to support certiorari, the Trial Court must violate

clearly established law). Whether a Workers’ Compensation carrier can file suit, as

in the first day of the second year after accrual of the cause of action, so long as the

thirty (30) day notice of the intent to do so is provided to an injured worker, is a

“case of first impression.” However, interpretation of Florida Statutes and the

issue as to when and under what circumstances a stay can be issued involves the

application of “clearly established law”.

ZURICH’s Petition is apparently the first known case, under such

circumstances, to specifically question whether a Trial Court departs from the

essential requirements of “clearly established law” by failing to enforce Fla. Stat.

§440.39(4)(a) in accordance with the clear, unambiguous, and plain language of

the statute. ZURICH’s Petition also questions the appropriateness of issuance of a

stay as to a “first filed case” when the Trial Court has already determined that that

2

one claimant lacks standing to maintain its cause of action. Based thereon,

ZURICH is entitled to certiorari relief.

The “clearly established law” violated by the Stay Order is Fla. Stat.

§440.39(4)(a) which was first enacted as Section 39, Chapter 17481, Laws of 1935;

Fla. Stat. §440.39 was last amended in 1997. As a matter of law, “[S]tatutes also

constitute “clearly established law”, meaning that a district court can

use…certiorari to correct a circuit court decision that departed from the essential

requirements of statutory law.” 14269 BT LLC v. Village of Wellington, Florida,

240 So. 3d 1 (Fla. 4th DCA 2018).

The Stay Order also violates the Legislature’s overarching intent in enacting

Fla. Sta. §440.39(4)(a) that there can be only one lawsuit asserted against alleged

tortfeasors arising from an accident causing injuries to workers. In accordance

with Fla. Stat. §440.39(4)(a), either the Worker’s Compensation carrier or the

insured worker possesses standing to pursue a claim against the tortfeasors; there is

no support in Florida law for the proposition that both claims can exist or proceed

simultaneously irrespective of the imposition of a Stay Order. See Kimbrell v.

Paige, 448 So. 2d 1009 (Fla. 2009), citing Aetna Casualty and Surety Co. v. Bortz,

271 So. 2d 108 (Fla. 1972); Petition for Certiorari. Contrary to Florida law, there

are now independent and mutually exclusive cases asserted against the tortfeasors

arising out of the same workplace accident.

3

The Stay Order further violates a plethora of judicial principles (representing

“clearly established law”) governing statutory interpretation and construction; those

principles mandate that statutes must be enforced in accordance with their plain and

ordinary meaning. Examples of the foregoing includes the edict that “statutory

interpretation in any case begins with the actual language used in the statute

because legislative intent is determined first and foremost from the statute’s text.”

“In giving effect to the text of a statute, courts may not extend, modify, or limit the

statute’s express terms or its reasonable or obvious implications because to do so

would be an abrogation of legislative power.” “When the language of the statute is

clear and unambiguous and conveys a clear and definite meaning, there is no

occasion for resorting to the rules of statutory interpretation and construction; the

statute must be given its plain and obvious meaning.” See Searcy, Denney, Scarola,

Barnhart, & Shipley, etc. v. State, 209 So. 3d 1181 (Fla. 2017) citing Bennett v. St.

Vincent’s Med. Ctr., 71 So. 3d 828, 837 (Fla. 2011).

The plain meaning of Fla. Stat. §440.39(4)(a) does not support the Trial

Court’s Order. If the Trial Court was satisfied that ZURICH does not have standing

to pursue claims against the tortfeasors in its individual capacity, rather than

entering the Stay Order, ZURICH’s claims should have been Dismissed with

Prejudice. Under any circumstances, the Trial Court also violated “clearly

established law” by staying ZURICH’s “first filed case”. At any point prior to

4

entry of the Stay Order, the Trial Court should have used its inherent power to

reconsider and correct its prior erroneous interlocutory order. Rogers v. State, 2020

WL 2091121 (Fla. 1st DCA 2020); Helmich v. Wells Fargo Bank, N.A., 136 So. 3d

763 (Fla. 1st DCA 2014).

Respondents have not cited any Florida case allowing a stay where the issue

of standing was raised by both the claimants and the tortfeasors. The reason

therefore is simple; there are none. As set forth in the Petition for Certiorari, “As a

matter of law, a plaintiff must have standing when it files its initial complaint.

GMAC Mortgage, LLC v. Pisano, 227 So. 3d 1279 (Fla. 4th DCA 2017). A

plaintiff’s lack of standing at the inception of the case is not a defect that may be

cured by the acquisition of standing after the case is filed and cannot be established

retroactively by acquiring standing after the fact. LaFrance v. U.S. Bank Nat.

Ass’n, 141 So. 3d 754 (Fla. 4th DCA 2014). A plaintiff’s lack of standing is a

fatal defect which requires dismissal of the case. Nedeau v. Gallagher, 851 So. 2d

214 (Fla. 1st DCA 2003).” See Petition for Certiorari, P.27-28. While consideration

of the specific standing issue involved herein is one of “first impression”, the Trial

Court’s decision to refuse to dismiss one of the two sets of cases filed against the

tortfeasors by issuing a stay of ZURICH’s claim violates “clearly established law”.

The terms, “first impression” and “clearly established law,” are not in

disharmony. On point is 14269 BT v. Village of Wellington, 240 So. 3d 1 (Fla. 4th

5

DCA 2018). 14269 BT was a case of “first impression” wherein, certiorari was

granted and the Circuit Court’s Order was quashed. 14269 BT was the first case to

question how Fla. Stat. §604.50 should be interpreted. The Trial Court’s violation

of “clearly established law” supported certiorari in that case. In 14269 BT, it was

determined that the lower court departed from the essential requirements of law by

failing to enforce the plain language of Fla. Stat. §604.50 and by failing to properly

apply judicial principles governing the interpretation of statutes in accordance with

legislative intent. Likewise, the Stay Order issued by the Trial Court herein is

equally defective and requires reversal via certiorari.

Respondents assert that the Stay Order is appropriate because ZURICH’s

Action is “duplicative” of their cases and that Florida Courts are not required to

issue stay orders of second-filed cases when the first-filed case is premature. Under

Florida Law, ZURICH’s case is not “duplicative” of the Respondents’ cases. As

framed by the pleadings, ZURICH asserted standing to pursue the Respondents’

claims in its own right based upon Florida Statute Section 440.39(4)(a). ZURICH

further asserted that its filing was timely. The Respondents alleged that they

possessed standing to pursue their claims. In accordance with Kimbrell, only one

“Plaintiff” has standing to sue the tortfeasors. Because either ZURICH or

Respondents (but not both ZURICH and Respondents) have standing to sue the

tortfeasors, the cases are independent and not duplicative.

6

Notwithstanding Respondents’ assertion to the contrary, the Trial Court did

not find that ZURICH’s case was “premature”. There is no Florida case involving

a stay order issued as to a “prematurely-filed case” where standing was the

overreaching consideration. By way of its July 25, 2019 Order, the Trial Court

effectively determined that ZURICH can not proceed with a claim against the

Defendants solely based upon the failure to comply with the pre-filing

requirements set forth in Fla. Stat. §440.39(4)(a). As a practical result thereof,

ZURICH lost its ability to sue the Defendants in its own right. Based upon the

July 25, 2019 Order (issued solely in the Respondents’ cases), the Trial Court

determined that the Respondents possess standing to sue the tortfeasors.

Consistent with the July 25, 2019 Order, ZURICH cannot pursue claims in its own

right against the tortfeasors not because the lawsuit was premature, but rather

because the Trial Court determined that the Respondents possess standing to do so.

The Trial Court denied HENSEL PHELPS’ Motion to Dismiss the

Respondents’ claims because it concluded that ZURICH lacked standing to pursue

those claims in accordance with Florida Statute Section 440.39(4)(a). According to

“clearly established law,” lack of standing is not curable. It is a fatal defect. See

Nedeau. Having determined that the Respondents possess standing to sue the

tortfeasors (and therefore, ZURICH can not do so), there is no rationale for issuing

the Stay Order in ZURICH’s Action. Rather, ZURICH’s Action should have been

7

dismissed for lack of standing. However, in an obvious tactical effort to stymie

ZURICH’s right to pursue a plenary appeal to determine with finality who

possesses standing to sue the tortfeasors, the Respondents asked the Trial Court to

stay ZURICH’s action until their cases are over.

The Stay Order clearly violates Florida case law and the Legislative mandate

set forth in Fla. Stat. §440.39(4)(a) providing that only one case can be filed

against the alleged tortfeasors. Kimbrell. Contrary to Respondents’ assertions,

there are no “good reasons” to stay a case where the Trial Court has concluded that

a claimant lacks standing to sue regardless of whether that determination is based

on pre-filing notice requirements or for any other reason. Simply put, if a party

lacks standing to sue, there is no basis for the lawsuit to exist. The Stay Order has

essentially relegated ZURICH’s lawsuit to a “Zombie”; it is neither dead nor alive

and can only proceed at an unspecified date under conditions which ZURICH can

neither control nor define.

Consistent with Florida law, ZURICH does not assert that the Respondents’

cases should be stayed. Rather, ZURICH argues that as an additional ground for

overturning the Stay Order, Florida law does not allow a “first filed case” to be

stayed wherein the Trial Court has determined that a claimant lacks standing to

sue. As such, ZURICH respectfully requests that this Court should determine with

finality whether the Respondents or ZURICH have standing to sue the tortfeasors.

8

HENSEL PHELPS (as opposed to ZURICH in its capacity as the Workers

Compensation carrier) moved to dismiss the Respondents’ cases with prejudice

based on lack of standing. The pivotal issue before the Trial Court on HENSEL

PHELPS’ Motion to Dismiss was whether ZURICH’s notice of intent letter (which

was served on a timely basis in accordance with the requirements of Fla. Stat.

§440.39(4)(a)) demonstrated that Respondents possess no standing to pursue their

claims against the tortfeasors. While that position necessarily leads to the

conclusion that ZURICH has standing to pursue claims against the tortfeasors,

ZURICH was not a party in the Respondents’ cases. Nevertheless, as an

“interested observer”, counsel for ZURICH addressed the standing issue with the

Trial Court at the April 1, 2019 hearing by outlining ZURICH’s position as

follows:

Our argument in sum and substance, Your Honor, is any day after the

365th day, the carrier has the concurrent right. That right is contingent

upon giving 30-day notice, but it exists. In effect, it’s a race to the

courthouse, presuming that the carrier has provided that 30-day notice.

The plaintiffs’, in this case, position, effectively is, well, it’s got to be

365 days plus 30 days so that the carrier in effect could not file suit

until the 396th day. That is simply not what the statute says. The statute

says 365, 30 days. So first off, ZURICH’s position is it’s not 365 plus 30

because clearly the statute doesn’t say that. It says you get 30 days’

notice…

We can argue it back and forth. But if, in fact, the legislature had

intended for the carrier’s right to give a notice to only begin once the

365-day period was over, the Court [sic: legislature] would not have said

that the carrier has the right after—to institute suit after [the] 365th day,

after the year. [Emphasis added].

9

See App. 797, L17 to 798, L12

Having fully complied with the pre-filing requirements of Fla. Stat. §440.39(4)(a),

ZURICH effectively and appropriately extinguished the Respondents’ standing to

pursue their claims. See App. 8-68; 155-164. While the Trial Court obviously

rejected that argument, the April 1, 2019 hearing and the July 25, 2019 Order

thereon was specifically limited to the tortfeasors and the Respondents. To drive

the point home, the Trial Court refused to grant ZURICH’s requests to make the

July 25, 2019 Order specifically applicable to the ZURICH Action.

Although Respondents argue that ZURICH’s Action was “premature”; that

assertion is not supported by Florida law and was not the Trial Court’s conclusion.

ZURICH’s filing was not premature. Counsel for HENSEL PHELPS addressed

this point in its Omnibus Reply to the Responses to its Motions to Dismiss and at

the April 1, 2019 Hearing as follows:

11. The first year from the accrual date elapsed at 11:59 p.m., August 26,

2018. Under Fla. Stat. §440.39(4)(a), The Plaintiffs’ exclusive

statutory right to bring their personal injury action was within that first

year. The second year began at midnight, 12:00 a.m., August 27,

2018. At this time, both ZURICH and the Plaintiffs shared a statutory

concurrent right to file a Complaint arising out of the same workplace

accident. See: Fla. Stat. §440.39(4)(a). It is, however, “a race to the

courthouse” to file first because Florida Courts recognize “that only

one suit against an alleged tortfeasor is contemplated by section

440.39.” See: Kimbrell v. Paige, 422 So. 2d 902 (Fla. 4th DCA 1982)

affirmed, 448 So. 2d 1009 (Fla. 1984).

12. It is undisputed that ZURICH electronically filed its Complaint on

September 3, 2018, which the Court accepted and stamped as filed

September 3, 2018 at 12:02:41 a.m.

10

13. Although, September 3, 2018, was Labor Day, a legal holiday,

ZURICH’s filing of the Complaint was not impacted by Fla. R. Jud.

Admin 2.514, whatsoever. This is so because the timing of ZURICH’s

Complaint was triggered by the and of the 30-Day Notice period,

which ended on Saturday, September 1, 2018.

14. The Plaintiffs incorrectly argue that the 30-Day Notice period is

itself extended by Rule 2.514 and therefore, extended to the next

business day, Tuesday, September 4, 2018 (September 3, 2018 being

Labor Day).

15. As a matter of law, Rule 2.514 does not extend the pre-suit

Notice period beyond the end of the actual 30 days on September 1,

2018.

16. This is so because the 30-Day Notice (of intent to sue) is a pre-

suit event. No cause of action has been filed which would bring the

time computation under the regulation of Rule 2.514.

17. The Florida Rules of Civil Procedure direct us to Fla. R. Jud.

Admin 2.514 under Fla. R. Civ. P., Rule 1.090(a) which sates:

(a) Computation: Computation of time shall be governed by Florida

Rule of Judicial Administration 2.514

See: Fla. R. Civ. P. 1.090(a)

18. However, the “scope” of the Florida Rule of Civil Procedure are

limited to “all actions of a civil nature.” Florida Rule of Civil

Procedure 1.010 states clearly and unequivocally as follows:

Fla. R. Civ. P. Rule 1.010

Rule 1.010. Scope and Title of Rules

These rules apply to all actions of a civil nature and all special

statutory proceedings in the circuit courts and county courts

except those to which the Florida Probate Rules, the Florida Family

Law Rules of Procedure, or the Small Claims Rules apply. The form,

content, procedure, and time for pleading in all special statutory

proceedings shall be as prescribed by the statutes governing the

proceeding unless these rules specifically provide to the contrary.

These rules shall be construed to secure the just, speedy, and

inexpensive determination of every action. These rules shall be known

as the Florida Rules of Civil Procedure and abbreviated as Fla.R.Civ.P.

11

(emphasis added)

In accordance thereto, the Scope and Purpose of the Florida Rules of

Judicial Administration only apply to causes of action filed with the

court. The scope of Florida Rule of Judicial Administration can be

found in Rule 2.110 and states in pertinent part:

Fla. R. Jud. Admin., Rule 2.110

Rule 2.110. Scope and Purpose

These rules, cited as “Florida Rules of Judicial Administration” and

abbreviated as “Fla. R. Jud. Admin.,” shall take effect at 12:01 a.m. on

July 1, 1979. They shall apply to administrative matters in all

courts to which the rules are applicable by their terms. The rules

shall be construed to secure the speedy and inexpensive determination

of every proceeding to which they are applicable. These rules shall

supersede all conflicting rules and statutes.

(Emphasis added)

19. Accordingly, because the 30-Day Notice, required by Fla. Stat.

§440.39(4)(a). as a prerequisite to the filing of ZURICH’s Complaint is

a pre-suit event, Rule 2.514 is inapplicable and does not operate to

extend the 30-Day Notice period. Accordingly, the 30-Day Notice

period ended Saturday, September 1, 2018.

20. As a result, ZURICH was free to file its Complaint, anytime

thereafter, within the second year (which began August 27, 2018),

regardless as to whether that date of filing fell on a weekend or

holiday.

21. ZURICH’s Complaint was therefore, not premature, but

properly and timely filed on September 3, 2018, within the second

year, and two days after the end of its 30-Day Notice period.

See App. 771 at 777-780

Respondents are incorrect in asserting that there is no irreparable harm

caused to ZURICH by staying rather than dismissing its case. ZURICH has

suffered irreparable harm that cannot be remedied upon plenary appeal after a

Judgment is rendered in favor of parties who have no standing to proceed. Taylor

12

v. TGI Friday’s, Inc., 16 So. 3d 312 (Fla. 1st DCA 2009). As the party with

standing to pursue the claims, ZURICH has a right to recover the full value of the

Respondent’s claims. See Fla. Stat. §440.39(4)(a). By comparison, if ZURICH

does not have standing to pursue the claims in its own right, it will only be entitled

to receive a pro rata share of any settlement or Final Judgment based upon the

“Manfredo Formula”. See Manfredo v. Employers Casualty Insurance Company,

560 So. 2d 1163 (Fla. 1990). Because it is not a party in the Respondents’ cases,

ZURICH cannot appeal Final Judgments entered in those cases. Patently,

ZURICH’s irreparable harm cannot be remedied upon plenary appeal in the

Respondents’ cases.

Likewise, based upon the Stay Order, ZURICH’s irreparable harm cannot be

remedied by a plenary appeal in ZURICH’s Action. In the Petition for Certiorari,

ZURICH explains the extent of its irreparable harm as follows:

The Stay Order is silent as to the length of its duration. The Stay

Order does not provide for the occurrence of any contingency which

will trigger its dissolution. ZURICH submits that the Stay is intended

to remain in effect through final resolution of all of the Injured

Workers’ lawsuits. Therefore, ZURICH has effectively been

prohibited from obtaining a final appellate determination as to

whether it possesses standing to pursue the Injured Workers’ claims.

ZURICH further posits that its constitutional right to access to the

Courts has been unreasonably restricted by the Trial Court’s Stay

Order. See Petition for Certiorari, P18.

As a result of the Trial Court’s Order, the stay remains in effect until the

conclusion of Respondents’ cases. After the conclusion of the Respondents’ cases

13

(by way of Judgment or settlement), the appeal of an Order Dismissing ZURICH’s

Action against the tortfeasors would be both moot and altogether pointless.

Respondents’ argument that ZURICH could have sought certiorari review of

the “many motions” denied by the Trial Court, asking for a determination as to

who “owns the claims against the tortfeasors” is wholly without merit. The

appellate rules do not preclude a party from seeking multiple reviews of different

Trial Court orders via certiorari. The appellate rules do not provide that the failure

to seek review of a particular order by certiorari waives that party’s right to seek

certiorari of another order issued by the Trial Court in the same case.

Respondents’ reliance upon Staffing Concepts Intern., Inc. v. Paul, 704 So. 2d 601

(Fla. 3rd DCA 1997) is misguided and misplaced. In Staffing Concepts, the Court

denied an insolvent employer’s attempt to collaterally attack, in a circuit court rule

nisi proceeding, a final order entered by the Deputy Commissioner in a workers’

compensation proceeding. “The appropriate channel for Staffing’s challenge to the

workers’ compensation order would have been by way of a direct appeal.” Id. at

692. No final order has been entered in ZURICH’s Action. ZURICH’s Action is

not a rule nisi proceeding. The holding in Staffing is therefore inapposite and

inapplicable herein.

Moreover, Respondents fail to consider the simple fact that the Motions to

Dismiss were not filed by ZURICH; rather, the Motions to Dismiss were filed by

14

HENSEL PHELPS and the tortfeasors in Respondents’ cases. ZURICH has never

been a party in the Respondents’ cases. Therefore, ZURICH could not seek

certiorari review of the July 25, 2019 Order denying HENSEL PHELPS’ Motion to

Dismiss. Respondents’ attempt to conflate HENSEL PHELPS and ZURICH is

inapposite. HENSEL PHELPS and ZURICH are separate and independent entities;

their roles, rights, duties and interests are not the same. ZURICH does not stand in

the shoes of HENSEL PHELPS in Respondents’ cases. As a result, unlike

ZURICH, HENSEL PHELPS suffered no irreparable harm by the determination

that the Respondents (rather than ZURICH) have standing to pursue the claims

asserted in those cases. Without question, HENSEL PHELPS could not appeal the

July 25, 2019 non-final Order denying the Motion to Dismiss; the July 25, 2019

Order is not an interlocutory order subject to a non-final appeal. See Fla. R. App.

P. 9.130. For the same reason, ZURICH was precluded, as a matter of law, from

seeking appellate review of the Trial Court’s non-final Order denying ZURICH’s

“Motion to Correct by Interlineation” (filed in ZURICH’s consolidated Action)

wherein the Trial Court affirmed that ZURICH is not a party in the Respondents’

cases. (App. 878, 934). See Fla. R. App. P. 9.130.

CONCLUSION

By issuing the Stay Order, the Trial Court departed from the essential

requirements of law causing irreparable harm to ZURICH for which there is no

15

adequate remedy on plenary appeal. The Stay Order is unsupported by Florida law;

it contravenes the clear intent of Fla. Stat. §440.39(4(a) that there be only one

cause of action asserted against tortfeasors arising out of a workplace accident.

The Stay will cause the parties (and the insurers who are bearing the costs of

defense) to litigate the Respondents’ cases despite the uncertainty of not knowing

with finality whether ZURICH or the Respondents have standing to pursue those

claims. If allowed to stand, the Stay Order will result in an extraordinary

expenditure of time and labor by the parties and the Trial Court which may be for

naught if ZURICH (rather than Respondents) has standing to pursue the claims at

issue herein.

ZURICH respectfully requests that this Court enter an Order which grants

certiorari, quashes the Stay Order and further determines that ZURICH possesses

standing to pursue all claims against the Defendants herein provided by Fla. Stat.

Section 440.39(4)(a).

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished via the Florida E-Portal to: ROMANO LAW GROUP, Attorneys for

Plaintiffs Jamie Santaclara, Arcelia Enriguez, Ivan Santaclara and Sophia

Santaclara, P.O. Box 21349, West Palm Beach, FL 33416 at

service@romanolawgroup.com; John@romanolawgroup.com;

Hali@romanolawgroup.com; Danielle@romanolawgroup.com; HUMPHRIES

BRANNOCK & HUMPHRIES, Attorneys for Plaintiffs/Defendants Jamie

Santaclara, Arcelia Enriguez, Ivan Santaclara and Sophia Santaclara, 1111 West

Cass Street, Suite 200, Tampa, FL 33606 at eservice@bhappeals.com;

smoxon@bhappeals.com; chumphries@bhappeals.com; LEVIN, PAPANTONIO,

MITCHELL, RAFFERTY & PROCTOR, P.A., Attorneys for Plaintiffs Jamie

Santaclara, Arcelia Enriguez, Ivan Santaclara and Sophia Santaclara, 316 South

Baylen Street, Suite 600, Pensacola, FL 32502 at bcash@levinlaw.com;

wbowden@levinlaw.com; trafferty@levinlaw.com; QUINTAIROS PRIETO

WOOD & BOYER, P.A., Attorneys for Steel, LLC, 114 East Gregory Street, 2nd

Floor, Pensacola, FL 32052, at atalbert@qpwblaw.com;

tricia.payne@qpwblaw.com; dshally@qpwblaw.com; GUILDAY, SIMPSON,

WEST, HATCH, LOWE & ROANE, P.A., Attorneys for Brittingham & Associates

Structural Engineers, LLC, 1983 Centre Pointe Blvd. Suite 200, Tallahassee, FL

32308 at mike@guildaylaw.com; Robbie@guildaylaw.com;

Kimberley@guildaylaw.com; beths@guildaylaw.com; cindy@guildaylaw.com;

LLOYD, GRAY, WHITEHEAD &MONROE, P.C., Attorneys for Thornton

Tomasetti, Inc., 880 Montclair Road, Suite 100, Birmingham, AL 35213 at

bwilliams@lgwmlaw.com; bmonroe@lgwmlaw.com; rfernandez@lgwmlaw.com;

ZARZAUR LAW, P.A., Attorney for Plaintiff Ivan-Torres Cruz and Plaintiff

Anthony Taylor Waters, 11 E. Romana Street, P.O. Box 12305, Pensacola, FL 32591

at joe@zarzaurlaw.com; service@zarzaurlaw.com; MORGAN & MORGAN

ALABAMA, PLLC, Attorneys for Plaintiff John D. Lutley and Plaintiffs Deamond

Robinson and Cynthia Robinson, 700 South Palafox street, Suite 95, Pensacola, FL

32505 at jminchin@forthepeople.com; woakley@forthepeople.com;

kwestberry@forthpeople.com; ehuffstetler@forthepeople.com; CONROY

SIMBERG, Attorney for Hensel Phelps Development, LLC a/k/a Hensel Phelps

Construction Co. a/k/a Hensel Phelps Construction Inc. at

eservicepns@conroysimberg.com; mfretland@conroysimberg.com; GALLOWAY

LAW FIRM, Counsel for Ready Mix USA, LLC, 118 East Garden Street, Pensacola,

FL 32502 at jmgservice@gallowaylawfirm.com; COLE, SCOTT & KISSANE,

P.A., Attorneys for Empire Construction, LLC, 890 South Palafox Street, Suite 200,

Pensacola, FL 32502 at Clay.whitaker@csklegal.com;

IV

Kassia.deleon@csklegal.com; LUTHER COLLIER HODGES & CASH, LLP,

Attorneys for Joe Dereuil Associates, LLC, 4300 Bayou Blvd., Suite 33, Pensacola,

FL 32503 at lhodges@lchclaw.com; lbhservice@lchclaw.com; WADE PALMER &

SCHOEMAKER, Attorneys for American Concrete Supply, Inc., 14 North Palafox

Street, P.O. Box 13510, Pensacola, FL 32591-3510 at npalmer@wpslawyers.com;

ssmith@wpslawyers.com; cschreiner@wpslawyers.com; COLE, SCOTT &

KISSANE, P.A., Attorney for Larry M. Jacobs & Associates, Inc., 9150 South

Dadeland Boulevard, #1400, P.O. Box 569015, Miami, FL 33256 at

George.Truitt@csklegal.com; Alan.Horky@csklegal.com;

Jessica.Begona@csklegal.com; Roxane.Hale@csklegal.com;

Construction.Miami@csklegal.com on this 10th day of August, 2020.

DERREVERE STEVENS BLACK & COZAD

2005 Vista Parkway, Suite 210

West Palm Beach, FL 33411

Telephone: 561-684-3222

Facsimile: 561-640-3050

Email: jdd@derreverelaw.com

Eservice: eservice@derreverelaw.com

BY:____s/ Jon D. Derrevere______

Jon D. Derrevere, Esq.

FBN: 330132

BY: _/s/Michael B. Stevens_____________

Michael B. Stevens, Esq.

FBN: 0057466

Email: mbs@derreverelaw.com

eservice@derreverelaw.com

BY:__/s/ Shirley Jean McEachern_____

SHIRLEY JEAN McEACHERN, ESQ.

FBN: 321044

E-mail: sjm@derreverelaw.com

Eservice: eservice@derreverelaw.com

v

CERTIFICATE OF COMPLIANCE WITH FLORIDA RULES OF

APPELLATE PROCEDURES 9.210(a)(2)

Pursuant to Fla. R. App. P. 9.210(a)(2), Petitioner/Plaintiff, by and through

their undersigned counsel, hereby certify that the contents of Petition for Writ of

Certiorari are in compliance with the above-referenced Rule with the proviso that

Times New Roman 14-point font has been used throughout the Petition for Writ of

Certiorari.

BY:____s/ Jon D. Derrevere______

Jon D. Derrevere, Esq.

FBN: 330132

By:__/s/ Michael B. Stevens_____________

JON D. DERREVERE, ESQ.

FBN: 0057466

BY:__/s/ Shirley Jean McEachern_____

SHIRLEY JEAN McEACHERN, ESQ.

FBN: 321044