Florida Workers' Compensation Joint Underwriting Association, Inc., Appellant,
American Residuals and Talent, Inc., d/b/a Art Payroll, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from an Order of the Office of Insurance Regulation.
David Altmaier, Commissioner.
J. Maida, James A. McKee, Benjamin J. Grossman, and Nicholas
R. Paquette of Foley & Lardner LLP, Tallahassee, for
F. Harris, Jr., David C. Ashburn, and M. Hope Keating of
Greenberg Traurig, P.A., Tallahassee, for Appellee.
Florida Workers' Compensation Joint Underwriting
Association, Inc. (FWCJUA), appeals a Final Order of the
Office of Insurance Regulation (OIR) reversing FWCJUA's
denial of workers' compensation coverage to Appellee,
American Residuals and Talent, Inc. (ART). We affirm, but
write to address FWCJUA's claim that ART is not an
employer under Florida law.
is a self-funding, residual-market insurer created by the
Legislature in order to provide workers' compensation
insurance to employers who are statutorily required to
maintain such insurance, but who are unable to obtain
coverage from private insurers in the voluntary market.
§ 627.311(5)(a), Fla. Stat. FWCJUA operates under the
supervision of a nine-member Board of Governors appointed by
the Financial Services Commission. § 627.311(5)(b), Fla.
Stat. Additionally, FWCJUA operates in accordance with a plan
of operation adopted by the Board of Governors and approved
by OIR. § 627.311(5)(c), Fla. Stat.
a New Hampshire corporation authorized to do business in
Florida. ART specializes in talent payroll services for the
motion picture, television, and radio commercial production
industry. ART provides payroll and employer of record
services to clients in the advertisement and entertainment
business for short-term productions, such as paying wages to
the talent, obtaining and covering the talent for state
unemployment compensation and workers' compensation
coverage for each production based on the location where the
production is being filmed or produced, and withholding,
paying, and remitting taxes due from the talent's
compensation, as well as filing state and federal tax returns
for the talent and providing W-2s to the talent.
first obtained workers' compensation coverage from FWCJUA
in 2002. After initially representing in its application for
coverage that it did not hire any of the employees for which
it sought coverage, ART subsequently changed its
representation in an August 2002 letter, stating that it
entered into employment contracts with workers and was a
temporary employment service. ART maintained coverage through
FWCJUA until 2004. From 2005 through 2012, ART obtained
workers' compensation coverage through the private
market. In 2012, ART was unable to maintain coverage in the
private market and reapplied for workers' compensation
coverage through FWCJUA. In its application, ART described
itself as a temporary employment service. FWCJUA issued ART a
coverage policy effective September 2012.
2014, FWCJUA received an application for workers'
compensation insurance from Stars of David Tours, LLC (Stars
of David). Stars of David is headquartered in New York and
intended to bring its actors and staff into Florida for a
travelling theatrical performance. Stars of David was unable
to obtain coverage through FWCJUA, so it contracted with ART
to provide workers' compensation insurance coverage until
it could get its own through FWCJUA. FWCJUA requested a copy
of the Talent Payroll Support Agreement that Stars of David
had with ART and determined that ART was an unlicensed
employee leasing company. FWCJUA then terminated ART's
workers' compensation coverage and filed a complaint with
the Florida Division of Business and Professional Regulation
found insufficient evidence to establish probable cause that
ART operated as an unlicensed employee leasing company and
dismissed FWCJUA's complaint. After DBPR closed its
investigation, ART reapplied to FWCJUA for coverage. FWCJUA,
however, again refused to issue ART workers' compensation
coverage and initiated another complaint to DBPR claiming
that ART was an unlicensed employee leasing company. DBPR
once again found insufficient evidence to establish probable
cause that ART operated as an unlicensed employee leasing
January 2016, FWCJUA again denied coverage to ART, concluding
that ART did not have any direct employees and, as a result,
was not an employer under Florida law. Thus, ART was not
eligible for coverage through FWCJUA. ART appealed
FWCJUA's eligibility determination to OIR.
Representatives for FWCJUA and ART testified during the OIR
February 2017, OIR issued its Written Report and
Recommendation reversing FWCJUA's denial of workers'
compensation coverage to ART. OIR found that ART, while not
an employee leasing company, is an employer under Florida
law, because it is a "similar agent" under section
440.02(16)(a), Florida Statutes. Additionally, OIR concluded
that "the obligation of the Production companies for the
provision of workers' compensation coverage is
contractually transferred to ART by virtue of the Talent