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.
William H. Rogner of Hurley, Rogner, Miller, Cox &
Waranch, P.A., Winter Park, for Amici Curiae Florida
Insurance Council, Florida Roofing & Sheet Metal
Contractors Association, FRSA Self Insurers Fund, and the
Florida Association of Insurance Agents.
ON MOTION FOR REHEARING
grant Appellant's motion for rehearing to the extent that
we withdraw our prior opinion, and substitute the following
in its place. Appellant, 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 section
440.02(16)(a), Florida Statutes and to clarify the scope of
the Final Order under review.
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 that desires to do business in
Florida. ART specializes in the industry for the motion
picture, television, and radio commercial production
industry. ART provides payroll and other 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. However, ART does not hire
or fire the employees of the client companies and limits
additional liability in its client contracts.
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. Under this operating
description, 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 2012 application, ART again 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. Upon review of the Agreement, FWCJUA concluded
ART was not operating as a temporary employment service but
as 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 (DBPR).
found insufficient evidence to make a determination as to
ART's operational status 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 make a determination.
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. ...