Torts
— Premises liability — Slip and fall — Workers’ compensation immunity —
Statutory employer — Action against owner of medical facility arising out of
slip and fall by employee of company which had contracted with defendant to
provide cleaning services at the facility — Trial court erred in granting summary
judgment in favor of defendant on ground that defendant, as plaintiff’s
statutory employer, was immune from civil liability under section 440.11(1)
where record was devoid of evidence showing that defendant had express or
implied contractual obligation to third party which it then sublet to
plaintiff’s employer — Remand for further proceedings

KIMBERLY D. MATHIS, Appellant, v. SACRED HEART HEALTH
SYSTEM, INC., Appellee. 1st District. Case No. 1D15-0820. Opinion filed March
24, 2016. An appeal from the Circuit Court for Escambia County. Gary L.
Bergosh, Judge. Counsel: M. Kevin Hausfeld of Kevin Hausfeld, P.A., Pensacola,
for Appellant. Joseph A. Wilson of Wilson, Harrell, Farrington, Ford, Wilson,
Spain & Parsons, P.A., Pensacola, for Appellee.

(PER CURIAM.) Kimberly Mathis (Mathis) appeals a final
summary judgment entered in her negligence suit against Sacred Heart Health
System, Inc. (Sacred Heart). Mathis argues that the trial court erred in its
determination that workers’ compensation immunity applies to Sacred Heart under
section 440.11(1), Florida Statutes. Because there is no evidence that Sacred
Heart subcontracted “contract work” within the meaning of section 440.10(1)(b),
Florida Statutes, we reverse and remand for further proceedings.

I.

Sacred Heart, as the owner of Nemours Children’s Clinic,
contracted with Coverall Service Company (Coverall) to provide cleaning
services at Nemours. Mathis was an employee of Coverall and sustained a slip
and fall injury while cleaning at Nemours. After receiving worker’s
compensation benefits from Coverall, Mathis filed suit against Sacred Heart
alleging negligence. The trial court granted Sacred Heart’s motion for summary
judgment on the ground that Sacred Heart, as Mathis’ statutory employer, was
immune from civil liability under section 440.11(1), Florida Statutes. This
appeal followed.

II.

Whether the workers’ compensation immunity of section
440.11(1) applies to Sacred Heart depends on whether Sacred Heart was a
so-called “statutory employer” of Mathis pursuant to section 440.10(1)(b),
Florida Statutes, which provides as follows:

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.

Sacred Heart would be considered a “statutory employer”
under this provision if it was performing “contract work” for a third party and
that it sublet a part of that contract work to Coverall, whose employee,
Mathis, was injured. See Rabon v. Inn of Lake City, Inc., 693 So.
2d 1126, 1129 (Fla. 1st DCA 1997); Antinarelli v. Ocean Suite Hotel, 642
So. 2d 661, 662 (Fla. 1st DCA 1994). Sacred Heart argues that its patients were
the third party for whom it sublet “contract work” to Coverall. “It is well
established . . . that to satisfy section 440.10(1)(b), the contractual
obligation may be implied, and does not need to be pursuant to an express
provision in a written contract.” Mitchell v. Osceola Cty. Sch. Bd., 159
So. 3d 334, 336 (Fla. 1st DCA 2015) (citing Rabon, 693 So. 2d at 1129).
In other words, the “contract work” to which section 440.10(1)(b) refers may
arise from an implied in fact contract. Rabon, 693 So. 2d at 1130. If
the undisputed material facts in the record are sufficient to establish that
Sacred Heart had a contractual obligation to provide cleaning services for its
patients and that it subcontracted such work to Coverall, then it is entitled
to the worker’s compensation immunity of section 440.11(1).

Mathis rightly contends that this case is controlled by our
decision in Rabon. In Rabon, a security guard employed by Wells
Fargo brought a civil action against a hotel for an injury she suffered while
patrolling its premises. Id. at 1128. The trial judge granted summary
judgment in favor of the hotel, ruling that the hotel was immune from civil
liability as the security guard’s statutory employer because the hotel owed an
implied contractual obligation to its guests to provide security services,
which the hotel sublet to Wells Fargo. Id. at 1132. This court ruled
that no evidence supported the trial court’s conclusion:

In
the instant case, the contract which the trial court implied was not based upon
any evidence. Even though a contract implied in fact may exist between
an innkeeper and its guest, the scope of the implied contract is a matter of
proof. Here, there is a complete dearth of evidence regarding the terms of any
contract between [the hotel] and its patrons. There are certainly no facts in
the record at the current stage of the litigation which might establish that
the [the hotel] had a contractual obligation to provide security guard service.

Id. (emphasis in original). The
absence of evidence regarding the existence of a contract was “critical”
because the nature of the contract between a contractor and a third party
“controls the resolution of the statutory employment relationship.” Id.
In order for the hotel’s obligation to provide safe premises to provide a basis
for statutory employer immunity under section 440.10(1)(b), it had to arise
“primarily from its contract with its customers,” rather than its “general duty
to exercise reasonable care.” Id. “Because there is no evidence of such
a contractual obligation sublet to Wells Fargo, the trial court erred in
granting summary judgment based on statutory employer immunity under section
440.10(1)(b).” Id. at 1128.

Like Rabon, the limited record in this case does not
contain any evidence of an express or implied contract between Sacred Heart and
a third party. In particular, the record contains no evidence showing that
Sacred Heart owed a contractual obligation to its patients to provide
cleaning services. Without such evidence, the trial court could not have
determined that Sacred Heart sublet “contract work” to Coverall.

III.

Because there is a genuine issue of fact regarding the
applicability of workers’ compensation immunity to Sacred Heart, we reverse and
remand for proceedings consistent with this opinion. (LEWIS, SWANSON, and
WINOKUR, JJ., CONCUR.)

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