
    Daniel W. WAINWRIGHT, Petitioner, v. WAINWRIGHT, INC., Forest Products Self-Insurers’ Fund, Corporate Group Service, Inc. and the Florida Industrial Commission, Respondents.
    No. 38366.
    Supreme Court of Florida.
    July 1, 1970.
    
      Charles C. Hurt, Orlando, for petitioner.
    C. E. Miller, of Wieland & Miller, Orlando, Patrick H. Mears, J. Franklin Garner, Tallahassee, for respondents.
   ADKINS, Justice.

We have for review an order of the Florida Industrial Commission affirming an order of the Judge of Industrial Claims denying claimant the benefit of the Florida Workmen’s Compensation Law.

Claimant was a resident of Georgia, employed by a Georgia corporation, which had its principal place of business in Georgia under a contract of employment entered into in the State of Georgia. While so employed claimant was injured in an accident arising out of and in the course of his employment in Georgia.

Prior to March 1964, a group of employers organized the Forest Products Self-Insurers’ Fund, hereafter referred to as “The Fund,” in accordance with Fla.Stat., § 440.57 (F.S.A.). The indemnity agreement provided that the members desired to afford the protection of the Florida Workmen’s Compensation Act and Employers’ Liability Act to their employees. It further provided that The Fund would pay any lawful award entered by the Florida Industrial Commission and that payment of claims would be made when they became payable under the laws of the State of Florida.

In "March 1964, a representative of The Fund secured an agreement and application for membership in The Fund from Wain-, wright, Inc., a Georgia corporation. This application was accepted by The Fund. The declaration for workmen’s compensation and/or employers’ liability coverage applicable to this employer stated that the location of the work place of the employer was at Nahunta, Georgia, and the indemnity agreement stated that it was the intention to afford the benefits of the Florida Workmen’s Compensation Act.

The claimant was injured on June 2, 1964 and was provided medical attention and disability benefits by the self-insured employer from the date of the accident to November 10, 1964. These benefits were discontinued due to the fact that the treating physician had pronounced the claimant able to return to work.

Thereafter, claimant sought benefits under the Georgia Workmen’s Compensation Law. The attorney for The Fund advised the Georgia Board that coverage or liability was denied by The Fund and withdrew from the Georgia proceedings. In his letter the attorney stated, “All benefits are restricted to the Florida Compensation Act.”

On August 4, 1966, claimant’s Georgia counsel inquired of the “Florida Insurance Department” as follows:

“ * * * I would appreciate it very much if you will check your records to see if either or both Forest Products Self Insurers Fund and Corporate Group Service, Inc. of Orlando, Florida, are authorized to do business in your state and if so, have they filed bond in effect, we may very shortly have a claim against it and we would appreciate your taking appropriate action if in the meantime application should be made for release of the bond.”

This letter eventually reached the Florida Industrial Commission on August 17, 1966 and within a few days the Florida Industrial Commission notified claimant’s attorney that a bond was in force to insure performance of the self-insurers’ responsibilities under the Florida Workmen’s Compensation Law.

On November 9, 1967, claimant’s Florida counsel filed a claim for compensation and application for hearing with the Florida Industrial Commission. The claim for benefits was denied by the Judge of Industrial Claims and this order was affirmed by the Full Commission.

To be entitled to Florida compensation for an injury without the state, Fla.Stat., § 440.09(1) F.S.A. provides:

“ * * * the employee or his dependents shall be entitled to compensation, if the contract of employment was made in this state, and if the employer’s place of business is in this state or if the residence of the employee is in this state, provided, his contract of employment was not expressly for service exclusively outside of the state; * * (Emphasis supplied.)

Admittedly, the accident involved would not come within the provisions of the Florida Workmen’s Compensation Act in the absence of a showing that respondents have waived or are estopped to use the provisions of Fla.Stat., § 440.09(1), F.S.A. so as to preclude a recovery by the petitioner.

Petitioner first contends that under the provision of Fla.Stat., § 440.04(3) F.S. A., the indemnity agreement enlarges the definition of “employee” and “employment” so as to constitute a waiver of exclusion and an acceptance of the provisions of the Workmen’s Compensation Law.

This subsection provides as follows:

“When any policy or contract of insurance specifically secures the benefits of this chapter to any person not included in the definition of “employee” or whose services are not included in the definition of “employment” or who is otherwise excluded or exempted from the operation of this chapter, the acceptance of such policy or contract of insurance by the insured and the writing of same by the carrier shall constitute a waiver of such exclusion or exemption and an acceptance of the provisions of this chapter with respect to such person, notwithstanding the provision of § 440.05 with respect to notice.”

The above subsection cannot be applied to extend the Florida Workmen’s Compensation Law to other states in which, as here, the State of Florida has no interest and to cases over which the State of Florida has no authority. The effect of this contention if successful would be an extraterritorial extension of the Florida law without substantial connection to Florida business reality. See Florida Workmen’s Compensation Law by Alpert, § 5:6; Workmen’s Compensation Law by Larson, Vol. 3, §§ 86.00, 87.00; Forehand v. Manly, 147 Fla. 287, 2 So.2d 864; Ray-Hof Agencies, Inc. v. Petersen, 123 So.2d 251 (Fla.1960).

The statutory condition, that the employment contract must be made in Florida in order for a worker employed and injured outside the state to recover workmen’s compensation, can be waived and is one which the employer can be estopped from presenting. See 26 F.L.P., Workmen’s Compensation, § 57. For example, a Florida employer, through its carrier, assured an employee insured in Missouri that he would be paid under the Florida law. The carrier paid the employee, settled a third party claim, and continued to provide benefits and pay compensation for a number of years. When a controversy arose over the need for medical attention, the Court held that the employer was es-topped from disclaiming further liability or benefits on the ground that the employment contract was not made in Florida. Butler v. Allied Dairy Products, Inc., 151 So.2d 279 (Fla.1963).

Also Blair v. Edward J. Gerrits, Inc., 193 So.2d 172 (Fla.1967) involved a claimant who had been employed to work exclusively in Puerto Rico and was injured in Puerto Rico. Claimant was told by his employer that he should return to Florida where he would be provided with medical treatment pursuant to the Florida Workmen's Compensation Act, which medical treatment was in fact furnished to him until the case was controverted. The Court held that the employer had waived the Florida requirement that the contract not be for service exclusively outside the state,

In Blair v. Edward J. Gerrits, Inc., supra, the Court held that the question of whether the respondents had waived or were estop-ped to use this provision of the Workmen’s Compensation Law so as to preclude a recovery was a question of fact. It was held that there was competent substantial evidence in the record to support the finding of the deputy commissioner.

In the instant case the Judge of Industrial Claims made a specific finding that there was no waiver, and there is competent substantial evidence to support this finding.

Furthermore, the Judge of Industrial Claims was correct in finding that the claim was barred for failure to file within two years after the last payment of compensation or the last remedial attention or treatment was provided by the employer. Fla.Stat, §§ 440.13(3) (b) and 440.19(1) (a), F.S.A. See Troyer v. Burnup & Sims, 222 So.2d 188 (Fla.1969).

The order of the Judge of Industrial Claims as affirmed by the Full Commission was correct. The writ of certiorari is denied.

It is so ordered.

DREW, THORNAL and BOYD, JJ., concur.

ERVIN, C. J., dissents with Opinion.

MANN, District Court Judge, dissents with Opinion and concurs with ERVIN, C. J.

CARLTON, J., dissents and concurs with ERVIN, C. J., and MANN, District Court Judge.

ERVIN, Chief Justice

(dissenting).

I am unable to agree to the foregoing opinion.

The Florida Industrial Commission was cognizant of the self-insurer indemnity agreement entered into by the forestry products employers for the maintenance of a Forest Products Self-Insurers Fund for workmen’s compensation benefits for their forestry products employees in Alabama, Georgia, and Florida (including employee herein), and permitted the indemnity agreement to be filed with it and required the employers to post a bond with it to secure performance of the self-insurer arrangement. At no time prior to claimant’s industrial accident did it disavow the Fund arrangement or insist that it be modified to exclude the out-of-state employees.

Respondent, Corporate Group Service, Inc., of Orlando, Florida (carrier) administered the Fund for the forestry products employers, collected premiums from employer for its participation in the Fund, and for a time paid medical expenses of claimant and disability benefits to him for his compensable injury.

The employer agreed in this case that claimant was covered by the Fund but Corporate Group Service, Inc., as carrier administering the Fund, controverted the claim on the technical ground claimant was not employed to work in Florida and was not injured in the course of his employment in Florida, relying on Section F.S. 440.09(1), F.S.A., which is the basis for affirmance of the Industrial Commission in the majority opinion.

It is quite obvious the above transactions estop the Fund from disclaiming workmen’s compensation liability on its part. In the face of the related circumstances, the controversion of the claim is a striking example of inconsistency.

Moreover, the Florida Industrial Commission, having permitted the filing with it of the indemnity agreement, thereby giving the forestry products employers’ self-insurer arrangement the standing of official recognition pursuant to F.S. Section 440.57, F.S.A. and requiring the posting of a bond to insure the Fund’s performance, is in an inconsistent position in later rejecting the claim.

Even if estoppel does not lie against the Commission by reason of its related conduct, F.S. Section 440.09(1), F.S.A., must be read in connection with F.S. Section 440.04(3), F.S.A., to the effect that contracts of insurance that provide workmen compensation benefits for persons “excluded * * * from the operation” of Chapter 440, F.S. (the Florida Workmen’s Compensation Law), shall nevertheless be deemed to cover such persons. To provide equal treatment, the same rule would apply to the self-insurer arrangement considered herein.

It is a sad commentary on the law that a workman should be made the victim of the inconsistent “blowing of hot and cold” exhibited in this case by the carrier. Our Industrial Commission should not sanction a narrow construction of our law to permit this untoward result, inasmuch as it did not disavow the arrangement providing benefits for out-of-state employees prior to claimant’s injury and timely require modification of the arrangement to indicate their exclusion.

In our decisions in Butler v. Allied Dairy Products (Fla.), 151 So.2d 279, and Blair v. Edward J. Gerrits, Inc. (Fla.), 193 So.2d 172, we were unwilling to allow technical constructions relating to out of the state employment of the kind relied on here to override the policy considerations and social interests implicit in the application of the Florida Workmen’s Compensation Law. We recognized in those cases that estoppel and waiver doctrines are applicable and that our compensation law is not so inflexible as to sanction a harsh and unreasonable result contrary to equitable principles. See Larson, The Law of Workmen’s Compensation, §§ 84.30, 86.00, 87.00, 87.15. Compare Hanover Ins. Co. v. Blash et al., Fla., 234 So.2d 661, opinion filed April 22, 1970.

The rejection of the claim on the basis that it was barred by the statute of limitations is without merit. Claimant’s attorney had directed an inquiry to the Florida Industrial Commission sufficient to indicate the nature of his claim and officially lodge it with the Commission prior to the expiration of the limitation, satisfying the requirements of our law as construed in A. B. Taff & Sons v. Clark (Fla.App.), 110 So.2d 428, and Florida Telephone Corp. v. Oliver (Fla.), 126 So.2d 885.

CARLTON, J., and MANN, District Court Judge, concur.

MANN, District Court Judge

(dissenting)-

If the choice-of-law question were before us I would agree with Mr. Justice Adkins that Georgia’s workmen’s compensation law governs. But it is the jurisdictional question we must determine. In the former instance we must determine which state has the dominant contact with the factual situation; in the latter instance, we must determine whether Florida has a sufficient contact to warrant assuming jurisdiction.

This is by no means exclusively a matter in which Georgia is interested. The Forest Products Self-Insurers Fund was organized in Florida and the Board of Trustees of the Fund were all Florida domiciliaries. Wainwright, Inc. entered into a contract in Starke, Florida with the Hercules Powder Company for the production and delivery of stumpage to the Hercules plant in Georgia. ,Employer Wainwright purchased three trailers in Starke, Florida, for the production of the stumpage, and claimant accompanied him to Florida for the purchase. The claimant was sent in a pickup truck owned by Wainwright, Inc. to Jacksonville, Florida, to purchase a steam jenny to clean and repair Wainwright’s equipment. Corporate Group Services, an Orlando, Florida corporation, serviced the account with Wainwright, Inc., and actually paid Dan Wainwright benefits computed according to Georgia compensation law, but utilizing Florida compensation forms because Georgia did not have such forms.

The indemnity agreement creating the Forest Products Self-Insurers Fund specified that it was the purpose of the fund to afford the protection of the Florida workmen’s compensation and employers liability act to their employees, and the agreement specified that the Fund would pay any lawful award entered by the Florida Industrial Commission and that payment would be made when due under the laws of Florida. The application of Wainwright, Inc., was accepted by the Florida fund, even though it was specified in the application that the place of work of the employer was Na-hunta, Georgia. The Florida fund accepted premiums from Wainwright and the fund paid administrative and second injury fund assessments to the Florida Industrial Commission on premiums received from Wainwright, Inc.

When payments to Dan Wainwright were terminated, the attorney for the fund servicing agent, Corporate Group Service, Inc., informed the Georgia Board, to which Wainwright had turned for benefits, that Florida law governed and that the Georgia Board had no jurisdiction over the matter. Subsequently, the Florida Industrial Commission was also told it had no jurisdiction over the matter.

If the question were initially presented to the Florida Court of Industrial Claims the judge thereof would be justified in declining jurisdiction, not for lack of state power over the matter, but because Georgia’s law governs the liability and amount of recovery. But here the carrier by its own action represented to the Georgia tribunal that the matter was governed by Florida law, and when claim was made in Florida denied that this state has jurisdiction.

It is commonly stated by the writers on conflict of laws that workmen’s compensation proceedings, being administrative in nature, cannot be entertained except in the state whose law governs the choice-of-law question.

While this may be true with respect to the administration of claims it is unworkable in the adjudication of claims like this one in which the carrier has defeated recovery in the state primarily interested by asserting coverage in Florida. Although Crider v. Zurich Insurance Co., 1965, 380 U.S. 39, 85 S.Ct. 769, 13 L.Ed.2d 641, relieves us of compulsion under the full faith and credit clause I think this a case in which the Judge of Industrial Claims in Florida can and should assume jurisdiction. Our Judges of Industrial Claims are required by law to be members of the Bar. They are experienced and thoroughly competent to decide matters of this nature and they do so at least quasi-judicially. Consequently I cannot approve any automatic rejection of their jurisdiction in a case like this in which Florida has a definite and substantial interest. That this court has so held previously is made apparent by Mr. Chief Justice Ervin’s dissent, with which I concur.

ERVIN, C. J., and CARLTON, J., concur. 
      
      . “Relief under a workmen’s compensation act can only be obtained, subject to rare exceptions, in the state of its enactment. This is because the acts normally provide for their enforcement by special administrative tribunals and such tribunals do not consider themselves competent to give relief under any act but their own. Hence the principal problem in the area is not choice of law but rather the range of extraterritorial application that will be given by a state to its own workmen’s compensation act. Many of the acts provide expressly for their extraterritorial application. In the absence of explicit provision on the point, the courts (and administrative tribunals) determine the range of application of their act in the light of what they conceive to be the act’s principal objectives.” Cheatham, Gris-wold, Reese and Rosenberg, Conflict of Laws, Cases and Materials, (1964) at 512. See also Leflar, American Conflicts Law 389-396 (1968) ; Ehrenzweig, Conflict of Laws 604-605 (1962).
     