42
Fla. L. Weekly D625bTop of Form

Torts
— Workers’ compensation immunity — Special employer — No error in entering
summary judgment in favor of help supply services company 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
— 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
showed that worker operating conveyor belt was not 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

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. March 15, 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.

(WARNER,
J.) 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).

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 appellant 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:

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.

§
440.11(2), Fla. Stat.

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