Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

August 2, 2019 by Jennifer Kennedy

Torts — Immunity — Workers’ compensation — Injuries on jobsite — Record did not support trial court’s finding that negligence claim was one between two subcontractors in horizontal privity and that, as such, defendants were entitled to workers’ compensation immunity from plaintiff’s claim for injuries sustained when employee of entity with whom property owner contracted for surveying work at development site backed truck into plaintiff, an employee of a separate entity that owner hired to perform road work at development site — Statute creates horizontal privity only when a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors — Entity developing the project for itself as the owner, and not under a contract with any third party, could not be considered a “contractor” that was “subletting” work

44 Fla. L. Weekly D1892a

Torts — Immunity — Workers’ compensation — Injuries on jobsite — Record did not support trial court’s finding that negligence claim was one between two subcontractors in horizontal privity and that, as such, defendants were entitled to workers’ compensation immunity from plaintiff’s claim for injuries sustained when employee of entity with whom property owner contracted for surveying work at development site backed truck into plaintiff, an employee of a separate entity that owner hired to perform road work at development site — Statute creates horizontal privity only when a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors — Entity developing the project for itself as the owner, and not under a contract with any third party, could not be considered a “contractor” that was “subletting” work

LEONIREZ HEREDIA, Appellant, v. JOHN BEACH & ASSOCIATES, INC., and MICHAEL MELENDES GROSS, Appellees. 2nd District. Case No. 2D18-4127. Opinion filed July 24, 2019. Appeal from the Circuit Court for Hillsborough County; Robert A. Foster, Jr., Judge. Counsel: Rolando J. Santiago and Gregory S. Grossman of RJS Law Group, Apollo Beach, for Appellant. Carri S. Leininger of Williams, Leininger & Cosby, P.A., North Palm Beach, for Appellee John Beach & Associates, Inc. No appearance for remaining Appellee.

(LUCAS, Judge.) Leonirez Heredia appeals the circuit court’s entry of a final summary judgment in favor of John Beach & Associates, Inc. (JBA) and Michael Gross, the defendants below. The circuit court was apparently persuaded that the plaintiff’s negligence claim was one between two subcontractors in horizontal privity under the Workers Compensation Law, §§ 440.01-60, Fla. Stat. (2017), and that, as such, the defendants were entitled to workers compensation immunity from the plaintiff’s claim. Because the record does not support that determination, we reverse the circuit court’s judgment.

In 2015, Lennar Homes, LLC (Lennar) was developing a tract of land it owned in Riverview into a residential community known as Oaks at Shady Creek. Although the record is somewhat sparse as to what were Lennar’s precise plans for this property, it is undisputed that Lennar was, at all times relevant, the fee simple owner of Oaks at Shady Creek. That is, Lennar was developing Lennar’s own property, not someone else’s.

From the record before us, it appears that Mr. Heredia was an employee of QGS Development, Inc. (QGS), a company that Lennar had hired to perform road work in the Oaks at Shady Creek subdivision. On April 22, 2015, Mr. Heredia was working at the site, cleaning dirt from a road. Mr. Gross, an employee of JBA, was working in the same vicinity as Mr. Heredia. JBA had been retained by Lennar to provide surveying work for the Oaks at Shady Creek development.1

Mr. Heredia alleges that Mr. Gross drove his JBA truck negligently by backing it into him. He filed a complaint against JBA and Mr. Gross in the Hillsborough County Circuit Court. JBA and Mr. Gross generally denied the complaint’s allegations and, pertinent here, asserted the affirmative defense that Mr. Heredia’s negligence claims were barred under the Worker’s Compensation Law.

The parties engaged in discovery and eventually filed competing motions for summary judgment on the issue of worker’s compensation immunity. In the defendants’ motion, JBA and Mr. Gross argued that QGS and JBA were both subcontractors of Lennar for the Oaks at Shady Creek development. Further, JBA and Mr. Gross maintained that QGS, JBA, and Lennar had workers compensation insurance coverage for this project — QGS’ policy provided coverage for its employees; JBA’s policy covered JBA’s employees; and Lennar’s policy extended coverage that “would have provided coverage to the Plaintiff.” As such, the defendants argued, there was horizontal privity between the subcontractors, JBA and QGS, so that JBA and Mr. Gross were immune from civil liability for QGS’ employee’s injuries.

Mr. Heredia’s motion for summary judgment argued otherwise. He pointed out that the applicable subsection of the Workers Compensation Law, section 440.10(b), only creates horizontal privity when “a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors.” Because Lennar was developing the Oaks at Shady Creek project for itself as the owner, and not under a contract Lennar had with any third party, Lennar could not be considered a “contractor” that was “subletting” work under this section. Accordingly, he argued, neither JBA nor Mr. Gross were immune from civil liability as a matter of law.

The circuit court agreed with the defendants. In an unelaborated order, it granted JBA and Mr. Gross’ motion for summary judgment. In a separate and equally sparse order, the court denied Mr. Heredia’s competing motion for summary judgment. Those rulings became final in the circuit court’s amended final judgment against Mr. Heredia, which was entered on September 14, 2018. Like the summary judgment orders that preceded it, the circuit court’s amended final judgment contained no findings or any legal analysis. Mr. Heredia now appeals that judgment.

We review a circuit court’s entry of summary judgment under a de novo standard of review. Herendeen v. Mandelbaum, 232 So. 3d 487, 489 (Fla. 2d DCA 2017) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)). A party is entitled to summary judgment only “if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c).

Dyck-O’Neal, Inc. v. Norton, 267 So. 3d 478, 480 (Fla. 2d DCA 2019).

In the case at bar, we are called upon to examine the scope and application of a type of workers compensation immunity,2 commonly known as “horizontal immunity,” between two parties working on a construction project. The Fourth District succinctly summarized the concept in Ciceron v. Sunbelt Rentals, Inc., 163 So. 3d 609, 612 (Fla. 4th DCA 2015): “Workers’ compensation immunity has been broadly expanded by the legislature to include subcontractors and sub-subcontractors working at a construction site, precluding an employee of one contracting entity injured on the job from suing another contracting entity working at the same construction site in tort.”

Section 440.10(1)(b) provides the contours of horizontal immunity:

In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

The issue here is whether Lennar was a “contractor” that “sublet part or parts” of its “contract work to a subcontractor or subcontractors” for purposes of section 440.10(1)(b). If Lennar was a “contractor” and it “sublet” a part of its “contract work” to JBA and QGS to work at Oaks at Shady Creek, then JBA and its employee Mr. Gross would be immune from tort liability for Mr. Heredia’s alleged injuries on the work site. If Lennar was not subletting contract work to subcontractors, then they would not have horizontal immunity.

As it happens, we have delved into this definitional issue before. In Derogatis v. Fawcett Memorial Hospital, 892 So. 2d 1079, 1083-84 (Fla. 2d DCA 2004), we explained that for a party to be considered a “contractor” pursuant to section 440.10(1)(b),

its “ ‘primary obligation in performing a job or providing a service must arise out of a contract.’ ” Sotomayor v. Huntington Broward Assocs. L.P., 697 So. 2d 1006, 1007 (Fla. 4th DCA 1997) (quoting Gator Freightways, Inc. v. Roberts, 550 So. 2d 1117, 1119 (Fla. 1989)). This “ ‘primary obligation’ . . . is ‘an obligation under the prime contract between the contractor and a third party.’ ” Sotomayor, 697 So. 2d at 1007 (citing Miami Herald Publ’g v. Hatch, 617 So. 2d 380, 381 (Fla. 1st DCA 1993)). “Stated another way, the rule is that the entity alleged to be the contractor must have ‘incurred a contractual obligation to a third party, a part of which obligation the entity has delegated or sublet to a subcontractor whose employee is injured.’ ” Antinarelli v. Ocean Suite Hotel, 642 So. 2d 661, 662 (Fla. 1st DCA 1994) (quoting Hatch, 617 So. 2d at 381).

Our court has emphasized that “[t]he statutory terms ‘contractor’ and ‘contract work’ plainly and unambiguously posit a party performing work pursuant to a contract with another.” Slora v. Sun ‘n Fun Fly-In, Inc., 173 So. 3d 1099, 1102 (Fla. 2d DCA 2015) (emphasis added).

There is no record evidence before us that Lennar was performing any work, of any kind, on behalf of any third party with respect to the Oaks at Shady Creek development. To the contrary, the evidence thus far tends to show that Lennar was acting on its own behalf as the owner of its own property.3 See Cuero v. Ryland Grp., Inc., 849 So. 2d 326, 329 (Fla. 2d DCA 2003) (reversing summary judgment that deemed Ryland a “statutory employer” under section 440.10(1)(b) where “Ryland was the fee owner of the property upon which it was developing the Bayshore Townhomes to sell for profit” and “Ryland undertook to develop its own property acting as its own general contractor”). Therefore, the final summary judgment in favor of JBA and its employee Mr. Gross was entered in error and must be reversed.

Reversed and remanded. (CASANUEVA and VILLANTI, JJ., Concur.)

__________________

1JBA was working under a “blanket contract” that covered multiple Lennar subdivisions, a document which describes JBA as a “subcontractor.” However, John Beach, the owner of JBA, testified that he did not know whether Lennar owned any of the subdivisions JBA worked on, and that his company had also been referred to as a “vendor.” QGS’ contract with Lennar identifies Lennar as “Owner” and QGS as “Contractor.”

2Subject to limited exceptions, section 440.11(1) provides that

[t]he liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death . . . .

3It appears from the transcript of the summary judgment hearing that the presiding judge simply misapprehended the distinction between an owner hiring parties to perform work on the owner’s property and an owner hiring a general contractor who, in turn, hires parties to perform work on the owner’s property.

* * *

Filed Under: Uncategorized

Primary Sidebar

Blog Archives

  • January 2021
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982