             Case: 14-10562    Date Filed: 07/30/2014   Page: 1 of 5


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 14-10562
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 6:12-cv-01492-GAP-DAB


WESCO INSURANCE COMPANY,
a foreign corporation,
                                                                 Plaintiff-Appellee,

                                     versus

DON BELL, INC., a Florida corporation,
d.b.a. DBI Demolition, et al.,

                                                                       Defendants,

JAMES ANTHONY CASTO,
individually and on behalf of AC, a minor, and RC, a minor,

                                                              Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                 (July 30, 2014)

Before MARTIN, ROSENBAUM, and HILL, Circuit Judges.
              Case: 14-10562     Date Filed: 07/30/2014   Page: 2 of 5




PER CURIAM:

      James Anthony Casto sued Don Bell, Inc. for damages resulting from

injuries he incurred in a motor vehicle accident while driving Don Bell, Inc.’s

dump truck. Don Bell, Inc. sought a defense and indemnity from its insurer,

Wesco Insurance Company, which brought this action seeking a declaration that

Casto’s injury is covered by Florida’s workers’ compensation statute and thus

excluded from its policy’s coverage. The district court granted summary judgment

to Wesco Insurance Company, holding that Casto was an employee and, therefore,

covered by the workers’ compensation statute and subject to the policy’s

exclusion. We agree.

                                         I.

      Wesco Insurance Company (“Wesco”) issued an insurance policy to Don

Bell, Inc. (“DBI”) that excludes from coverage “any obligation for which the

insured or insured’s insurer may be held liable under any workers’ compensation . .

. law.” Casto contends that the exclusion is inapplicable because he was a

volunteer and, therefore, not covered by Florida’s workers’ compensation statute.

He argues that the district court erred in finding that he was an employee because

he produced sufficient record evidence to create a genuine issue of material fact as

to whether he was a volunteer or an employee. Casto also contends that the record


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evidence was sufficient to create a genuine issue of material fact as to whether he

was a temporary worker and, as such, not subject to the policy exclusion. Neither

of these arguments has merit.

1.    Voluntary Worker

      Under Fla. Stat. § 440.02(15) (a), an employee is any person who receives

remuneration from an employer for the performance of any work or service. A

worker who “does not receive monetary remuneration for services is presumed to

be a volunteer unless there is substantial evidence that valuable consideration was

intended by both the employer and employee.” Fla. Stat. § 440.02 (15)(d)(6).

When determining whether a worker is a volunteer or an employee, it is the intent

to remunerate that creates the relationship. Fla. Stat. § 440.02 (15)(d)(6).

      The district court held that in this case there was substantial evidence that

valuable consideration was intended. Although Casto and Wid Bell, the principal

of DBI, were friends and had in the past exchanged gratuitous services, Casto

testified in his deposition that he expected to be compensated for driving the dump

truck on the day in question. He expected a reduction in the debt that he believed

he owed to Wid Bell, the principal and sole owner of DBI. Bell and the foreman

who hired Casto and directed his work both testified that DBI intended to

remunerate Casto for his services. Bell testified that he would have paid Casto for

his services if Casto wished to be paid. There was no evidence in the record to the


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contrary. Therefore, the district court concluded that there was no genuine issue of

fact as to whether Casto was an employee and subject to Florida workers’

compensation statute at the time of his injury.

      This was not error. No witness testified that Casto was a volunteer or had

agreed to work for free. Casto himself testified that he expected to be paid. DBI’s

representatives testified that they intended that he be paid. Therefore, the

substantial evidence was that Casto was an employee, not a volunteer. As an

employee, Casto was covered by Florida’s workers’ compensation law and “any

obligation” arising under that law is expressly excluded from Wesco’s policy

coverage. Therefore, the district court correctly concluded that Wesco’s coverage

exclusion applies to Casto.

2.    Temporary Worker

      Casto next argues that the district court erred in not finding that Wesco’s

policy itself did not define him as an employee. He points out that, under the

policy, he was a temporary worker and the policy expressly excludes temporary

workers from its definition of employee. Accordingly, Casto argues, he was not an

employee and was not subject to the policy’s workers’ compensation exclusion.

      This argument is irrelevant to the issue of whether Casto was an employee

for the purposes of Florida’s workers’ compensation statute. That status is not

affected by the policy’s definition of “employee” in any way. Whether Casto was


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an employee – temporary or permanent – is defined by Florida law for purposes of

workers’ compensation. As we have seen, he was an employee under that statute.

Therefore, any obligation DBI may incur under the workers’ compensation statute

is expressly excluded from Wesco’s policy coverage. The district court correctly

concluded that the policy’s definition of employee is irrelevant to the policy’s

workers’ compensation exclusion.

                                         II.

      For the foregoing reasons, the judgment of the district court is due to be

AFFIRMED.




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