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Fla. L. Weekly D1121aTop of Form
Fla. L. Weekly D1121aTop of Form
Torts
— Workers’ compensation immunity — Special employer — No error in entering
summary judgment in favor of help supply services contractor based on finding
that contractor was acting as plaintiff’s special employer where record
conclusively showed that plaintiff was employee of help supply services
company, not contractor — With respect to claims of intentional conduct and
negligent hiring, among others, brought against help supply services company
based upon conduct of worker who was operating conveyor belt at time plaintiff
was injured, evidence did not show that worker operating conveyor belt was employed
by help supply services company — Evidence — No abuse of discretion in
refusing to consider worker’s partially completed deposition as evidence where
the deposition was taken prior to help supply services company becoming party
to suit and no party with the same interest was present at the deposition —
Moreover, conclusive evidence showed that this worker was employed by
contractor and not help services company
— Workers’ compensation immunity — Special employer — No error in entering
summary judgment in favor of help supply services contractor based on finding
that contractor was acting as plaintiff’s special employer where record
conclusively showed that plaintiff was employee of help supply services
company, not contractor — With respect to claims of intentional conduct and
negligent hiring, among others, brought against help supply services company
based upon conduct of worker who was operating conveyor belt at time plaintiff
was injured, evidence did not show that worker operating conveyor belt was employed
by help supply services company — Evidence — No abuse of discretion in
refusing to consider worker’s partially completed deposition as evidence where
the deposition was taken prior to help supply services company becoming party
to suit and no party with the same interest was present at the deposition —
Moreover, conclusive evidence showed that this worker was employed by
contractor and not help services company
ANDRES MORERA, Appellant, v. WASTE
MANAGEMENT INC. OF FLORIDA, a Florida corporation, TWIN LAKES LAND RECLAMATION,
INC., a Florida corporation, WASTE COLLECTION, INC., a Florida corporation, and
GL STAFFING SERVICES, INC., a Florida corporation, Appellees. 4th District.
Case No. 4D14-3135. May 17, 2017. Appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Mily Rodriguez Powell, Judge; L.T. Case No.
12-013045 CACE (03). Counsel: Roy D. Wasson of Wasson & Associates,
Chartered, Frank L. Labrador and Mary Margaret Schneider of Demahy, Labrador,
Drake, Victor & Cabeza, and Jose Manuel Francisco, Miami, for appellant.
Steven H. Osber and Emily A. Thomas of Kelley, Kronenberg, P.A., Fort
Lauderdale, for appellees Waste Management Inc. of Florida and GL Staffing
Services, Inc.
MANAGEMENT INC. OF FLORIDA, a Florida corporation, TWIN LAKES LAND RECLAMATION,
INC., a Florida corporation, WASTE COLLECTION, INC., a Florida corporation, and
GL STAFFING SERVICES, INC., a Florida corporation, Appellees. 4th District.
Case No. 4D14-3135. May 17, 2017. Appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Mily Rodriguez Powell, Judge; L.T. Case No.
12-013045 CACE (03). Counsel: Roy D. Wasson of Wasson & Associates,
Chartered, Frank L. Labrador and Mary Margaret Schneider of Demahy, Labrador,
Drake, Victor & Cabeza, and Jose Manuel Francisco, Miami, for appellant.
Steven H. Osber and Emily A. Thomas of Kelley, Kronenberg, P.A., Fort
Lauderdale, for appellees Waste Management Inc. of Florida and GL Staffing
Services, Inc.
ON
MOTION FOR REHEARING
MOTION FOR REHEARING
(WARNER, J.) We deny the motion for
rehearing but republish the opinion to correct a clerical error.
rehearing but republish the opinion to correct a clerical error.
We affirm the final summary judgment
in favor of defendants/appellees Waste Management Inc. of Florida and GL
Staffing Services, Inc., in a suit for personal injuries. The trial court found
that Waste Management had immunity from appellant’s claims under Florida’s
Worker’s Compensation Act because it was acting as appellant’s “special
employer.” We conclude that final summary judgment was properly entered because
the record conclusively shows that Waste Management was immune from liability
pursuant to section 440.11(2), Florida Statutes (2010), as appellant was an
employee of Waste Collections, a help supply services company, as defined in
Standard Industry Code Industry Number 7363 of the U.S. Department of Labor
Standard Classifications.1 Although appellant argues on appeal
that he should be considered as employed by a facilities support management
service, defined in a separate standard, he did not make this argument to the
trial court. Therefore, it is not preserved. See Pensacola Beach Pier, Inc.
v. King, 66 So. 3d 321 (Fla. 1st DCA 2011).
in favor of defendants/appellees Waste Management Inc. of Florida and GL
Staffing Services, Inc., in a suit for personal injuries. The trial court found
that Waste Management had immunity from appellant’s claims under Florida’s
Worker’s Compensation Act because it was acting as appellant’s “special
employer.” We conclude that final summary judgment was properly entered because
the record conclusively shows that Waste Management was immune from liability
pursuant to section 440.11(2), Florida Statutes (2010), as appellant was an
employee of Waste Collections, a help supply services company, as defined in
Standard Industry Code Industry Number 7363 of the U.S. Department of Labor
Standard Classifications.1 Although appellant argues on appeal
that he should be considered as employed by a facilities support management
service, defined in a separate standard, he did not make this argument to the
trial court. Therefore, it is not preserved. See Pensacola Beach Pier, Inc.
v. King, 66 So. 3d 321 (Fla. 1st DCA 2011).
As to GL Staffing Services,
appellant had filed suit against it for intentional conduct and negligent
hiring, among other claims, based upon the conduct of worker Juarez, who was
operating the conveyor belt at the time appellant was injured and whom
appellant claimed was employed by GL. If GL did not employ Juarez, then it had
no liability to appellant. On summary judgment, the evidence presented,
including wage receipts and other documents, showed that Juarez was employed by
Waste Collections, thus making him a co-employee of appellant. There was no
evidence presented that GL employed Juarez and was thus in any way liable. The
trial court did not abuse its discretion in refusing to consider Juarez’s
partially completed deposition, during which, appellant claimed, Juarez had
testified he was a GL employee, not a Waste Collection employee. The deposition
was cut short because of Juarez’s transportation problems, and the parties were
unable to locate him to complete the deposition. The deposition was taken prior
to GL becoming a party to the suit, and no party with the same interest as GL
was present. To use a deposition on the authority of Florida Rule of Civil
Procedure 1.330(a), the party against whom it is offered must have been
“present or represented at the taking of the deposition or who had reasonable
notice of it[.]” Moreover, as we read the excluded deposition, Juarez did not
say that he was employed by GL, but merely that GL sent him to the job site.
The conclusive evidence of wage receipts and other documents show that Juarez
was employed by Waste Collection, the help services contractor, and not GL.
Therefore, the trial court did not err in granting summary judgment.
appellant had filed suit against it for intentional conduct and negligent
hiring, among other claims, based upon the conduct of worker Juarez, who was
operating the conveyor belt at the time appellant was injured and whom
appellant claimed was employed by GL. If GL did not employ Juarez, then it had
no liability to appellant. On summary judgment, the evidence presented,
including wage receipts and other documents, showed that Juarez was employed by
Waste Collections, thus making him a co-employee of appellant. There was no
evidence presented that GL employed Juarez and was thus in any way liable. The
trial court did not abuse its discretion in refusing to consider Juarez’s
partially completed deposition, during which, appellant claimed, Juarez had
testified he was a GL employee, not a Waste Collection employee. The deposition
was cut short because of Juarez’s transportation problems, and the parties were
unable to locate him to complete the deposition. The deposition was taken prior
to GL becoming a party to the suit, and no party with the same interest as GL
was present. To use a deposition on the authority of Florida Rule of Civil
Procedure 1.330(a), the party against whom it is offered must have been
“present or represented at the taking of the deposition or who had reasonable
notice of it[.]” Moreover, as we read the excluded deposition, Juarez did not
say that he was employed by GL, but merely that GL sent him to the job site.
The conclusive evidence of wage receipts and other documents show that Juarez
was employed by Waste Collection, the help services contractor, and not GL.
Therefore, the trial court did not err in granting summary judgment.
Affirmed. (GERBER and KUNTZ, JJ., concur.)
__________________
1Standard Industry Code Industry
Number 7363 is incorporated through section 440.11(2), Florida Statutes, which
provides:
Number 7363 is incorporated through section 440.11(2), Florida Statutes, which
provides:
The
immunity from liability described in subsection (1) shall extend to an employer
and to each employee of the employer which utilizes the services of the
employees of a help supply services company, as set forth in Standard Industry
Code Industry Number 7363, when such employees, whether management or staff,
are acting in furtherance of the employer’s business. An employee so engaged by
the employer shall be considered a borrowed employee of the employer, and, for
the purposes of this section, shall be treated as any other employee of the
employer.
immunity from liability described in subsection (1) shall extend to an employer
and to each employee of the employer which utilizes the services of the
employees of a help supply services company, as set forth in Standard Industry
Code Industry Number 7363, when such employees, whether management or staff,
are acting in furtherance of the employer’s business. An employee so engaged by
the employer shall be considered a borrowed employee of the employer, and, for
the purposes of this section, shall be treated as any other employee of the
employer.
§ 440.11(2), Fla. Stat.
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