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In Amcon Builders, Inc. v. Pardo, 38 Fla. L. Weekly D1893c (Fla. 3d DCA September 4, 2013), the 3d DCA granted a motion to dismiss the appeal holding that the trial court's order was a non-final order because it did not find, as a matter of law, that the employer was not entitled to workers' compensation immunity.

The trial court had issued an order denying Amcon's motion for summary judgment, which was based on workers' compensation immunity. The order denied the motion because of insufficient evidence thereby preserving the issue of whether Amcon was entitled to workers' compensation immunity for the jury. As such, the trial court did not find, as a matter of law, that Amcon was not entitled to workers' compensation immunity.

The motion to dismiss the appeal was granted because the order denying the motion for summary judgment was reviewable neither pursuant to the Florida Rules of Appellate Procedure nor the 3d DCA's certiorari jurisdiction.


This summary was prepared by Sean Crocker of our firm.


Sean Crocker

 

 

38 Fla. L. Weekly D1893c

 

Torts -- Workers' compensation immunity -- Non-final order denying employer's motion for summary judgment based on workers' compensation immunity is not appealable where order lacked finding that employer was not entitled to workers' compensation as a matter of law -- Appeal dismissed

AMCON BUILDERS, INC., Appellant, vs. MANUEL PARDO, et al., Appellees. 3rd District. Case No. 3D13-1169. L.T. Case No. 11-23254. Opinion filed September 4, 2013. An appeal from a non-final order from the Circuit Court for Miami-Dade County, Sarah I. Zabel, Judge. Counsel: Wicker, Smith, O'Hara, McCoy & Ford and Shelley H. Leinicke (Fort Lauderdale), for appellant. Beckham & Beckham and Pamela Beckham, for appellee Manuel Pardo.

(Before WELLS, SUAREZ and LAGOA, JJ.)

ON MOTION TO DISMISS

(LAGOA, Judge.) Appellee, Manuel Pardo ("Pardo"), moves to dismiss the appeal of a non-final order denying the employer's, Amcon Builders, Inc., motion for summary judgment based on workers' compensation immunity. For the reasons set forth below, we grant the motion to dismiss.

The trial court's order below makes no determination on the issue of workers' compensation immunity. Instead, the order simply denies a motion for summary judgment based on insufficient evidence. The trial court's order, therefore, "lacked the required designation 'that, as a matter of law, [the claimant] was not entitled to workers' compensation immunity,' which makes it appealable as a non-final order." Coastal Bldg. Maint., Inc. v. Priegues, 22 So. 3d 148, 148 (Fla. 3d DCA 2009). See also Fla. R. App. P. 9.130(a)(3)(C)(v); Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 821-22 (Fla. 2004) ("[N]onfinal orders denying summary judgment on a claim of workers' compensation immunity are not appealable unless the trial court order specifically states that, as a matter of law, such a defense is not available to a party." (quoting Hastings v. Demming, 694 So. 2d 718, 720 (Fla. 1997)).

Because the order denying the motion for summary judgment is neither reviewable under Florida Rule of Appellate Procedure 9.130 as a non-final order nor under the certiorari jurisdiction of this Court, see Fla. R. App. P. 9.030(b)(2), we grant Pardo's motion to dismiss the appeal.

Dismissed.




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