Lisa Williams as personal representative of the estate of Robert Williams, deceased, v. Gaffin Industrial Services, Inc.
37 FLW D1261
2nd DCA. In death claim, petition for workers' compensation benefits was filed which resulted in a settlement agreement. Thereafter, civil cause of action filed against employer by personal representative of deceased employee. A Motion to Dismiss was filed in civil cause of action alleging that the plaintiff had elected remedies under the Workers' Compensation Statute and accordingly was barred from filing the civil cause of action against employer. Lower court granted Motion to Dismiss. On appeal, decision of lower court reversed. Appeal considered on a de novo review by appellate court.
Election of remedies is an affirmative defense that is not properly raised by means of a Motion to Dismiss where the affirmative defense does not appear on the face of the complaint. In this case, the lower court considered matters outside of the four corners of the complaint in granting the Motion to Dismiss. If the court is required to consider matters outside the four corners of the complaint, then the cause is not subject to dismissal on the basis of a motion. The fact that the claimant had filed a petition for workers' compensation and had settled that case did not appear on the face of the complaint or any attachments to the complaint. Rather, it was supplied by the employer through various documents and an affidavit filed in support of its Motion to Dismiss.
Alternatively, the court determined that the lower court erred in dismissing the complaint with prejudice because the plaintiff in such circumstance had the right to amend the complaint once as a matter of right. An ore tenus motion was filed by plaintiff at the time of the hearing on the Motion to Dismiss.
In accordance with Florida Rule of Civil Procedure 1.190(a), a party may amend a pleading once as a matter of course at any time before a responsivle pleading is served. Court determined that the filing of a Motion to Dismiss was not deemed to be a responsive pleading and accordingly, the plaintiff in this instance should have been allowed to amend the complaint.