42
Fla. L. Weekly D2441aTop of Form

Torts
— Workers’ compensation immunity — Plaintiff who elected exemption from
workers’ compensation coverage as a corporate officer of sub-subcontractor
could not properly maintain a tort action against contractor and subcontractor
for injuries sustained in the course and scope of employment — Trial court
properly entered summary judgment for defendants in plaintiff’s tort action

CHARLES GLADDEN, Appellant, v.
FISHER THOMAS, INC., THE GREEN-SIMMONS COMPANY, INC., AND SHAWN MICHAEL
AVERETT, Appellees. THE GREEN-SIMMONS COMPANY, INC., Cross-Appellant, v. WILSON
FLOOR COVERING OF PENSACOLA, INC., Cross-Appellee. 1st District. Case No.
1D16-1752. Opinion filed November 15, 2017. An appeal from the Circuit Court
for Escambia County. Frank L. Bell, Judge. Counsel: Charles F. Beall, Jr. of
Moore, Hill & Westmoreland, P.A., Pensacola, and Bobby J. Bradford of
Aylstock, Witkin, Kreis & Overholtz, PLLC, Pensacola, for Appellant. W.
David Jester of Galloway, Johnson, Tompkins, Burr & Smith, P.L.C.,
Pensacola, for Appellee/Cross-Appellant The Green-Simmons Company, Inc. Gregory
M. Shoemaker of Wade, Palmer & Shoemaker, P.A., Pensacola, for Appellees
Fisher Thomas, Inc., and Shawn Michael Averett. Peter S. Roumbos of Quintairos,
Prieto, Wood & Boyer, P.A., Pensacola, for Cross-Appellee.

(PER CURIAM.) This is an appeal from
a final summary judgment entered against Appellant, Charles Gladden, and in
favor of Appellees, Fisher Thomas, Inc. (“Fisher Thomas”), The Green-Simmons
Company, Inc. (“Green-Simmons”), and Shawn Michael Averett (“Averett”). The
issue before us is whether Gladden can maintain an action against Appellees in
tort for injuries he sustained in the course and scope of employment, after
electing exemption from workers’ compensation coverage as a corporate officer.
For the reasons that follow, we conclude that he cannot and affirm the lower
court’s decision, although for reasons different than those articulated by the
court.1

I.

The action underlying this appeal
involves a claim by Gladden arising from a workplace injury occurring on June
2, 2009, while Gladden performed flooring installation work at the Opal Beach
Ranger Station. Gladden alleged that he was severely injured when Averett, an
employee of Fisher-Thomas, lifted materials to him with a forklift. The load
was improperly secured, causing Gladden to fall from the second floor of the
job site, which had no railing or other fall prevention in place.

At the time of the incident,
Green-Simmons was the general contractor retained by the National Park Service
for the project. Green-Simmons entered into separate subcontracts with Fisher
Thomas and Wilson Floor Covering, Inc. (Wilson Floor) to perform work on the
contract. Unbeknownst to Green-Simmons, Wilson Floor entered into a
sub-subcontract with Gladden’s company, Chuck Gladden’s Carpet & Vinyl
Installation, L.L.C. (“Gladden Carpet”), to perform the work Wilson Floor was
to perform under its subcontract with Green-Simmons.

The contract with the National Park
Service required Green-Simmons and its subcontractors to maintain workers’
compensation insurance, which Green-Simmons, Fisher Thomas, and Wilson Floor
did at all relevant times. As an officer of Gladden Carpet,2 Gladden elected to be exempt from
workers’ compensation coverage pursuant to section 440.02(15)(b)1., Florida
Statutes (2008). While Gladden provided a copy of his certificate of exemption
to Wilson Floor, neither Gladden nor Wilson Floor notified Green-Simmons of the
exemption.

Gladden sued Green-Simmons, Averett,
and Fisher Thomas under a theory of negligence. Green-Simmons, in turn, filed a
third-party complaint against Wilson Floor. Appellees argued in their motions
for summary judgment that they were immune from suit because Gladden was a
“statutory employee” of Green-Simmons under the Workers’ Compensation Law3 and potentially in line for workers’
compensation benefits. In response, Gladden argued that a corporate officer who
properly elects to be exempt from the Workers’ Compensation Law is excluded
from the definition of an “employee,” thereby precluding a finding of immunity.

The trial court entered summary
judgment in favor of Appellees, concluding that Gladden was an “employee” under
the Workers’ Compensation Law at the time of the accident notwithstanding his
exemption. The court ruled that Appellees were therefore entitled to workers’
compensation immunity as a matter of law. The court additionally ruled that
Wilson Floor was immune from any claims arising from the allegations levied by
Gladden against Green-Simmons on the basis of workers’ compensation
exclusivity. This appeal and cross-appeal followed.4

II.

The purpose of the workers’
compensation system is to provide an expeditious remedy for employees,
regardless of fault, and liability for employers that is limited and
determinate. McLean v. Mundy, 81 So. 2d 501, 503 (Fla. 1955) (citations
omitted). Under the Workers’ Compensation Law, an employer that maintains
workers’ compensation insurance coverage for the benefit of its employees is
immune from tort liability for a workplace injury. § 440.11(1), Fla. Stat.
(2008) (except as otherwise provided, “[t]he liability of an employer
prescribed in s. 440.10 shall be exclusive and in place of all other liability
. . . to the employee”); VMS, Inc. v. Alfonso, 147 So. 3d 1071, 1074
(Fla. 3d DCA 2014). A general contractor who has “the liability to secure
coverage” for employees of its subcontractor and either secures coverage for
the subcontractor’s employees or ensures that the subcontractor secures
coverage for its employees enjoys the same immunity. VMS, Inc., 147 So.
3d at 1074-75; § 440.10(1)(e), Fla. Stat. (2008).

The issue, as framed by Gladden, is
whether Gladden was an “employee” under the Workers’ Compensation Law at the
time of the accident. If, as the trial court found, Gladden was an “employee”
under section 440.02(15)(c)2., Florida Statutes (2008), Gladden concedes that
the exclusive remedy for his injuries falls under the protections provided by
the workers’ compensation system, as horizontal and vertical immunity would
insulate Appellees from tort liability. If he was not an “employee,” however,
he contends that workers’ compensation immunity does not apply.

The Workers’ Compensation Law
contains definitions of commonly used terms that apply “unless the context
clearly requires otherwise.” § 440.02, Fla. Stat. (2008). For workers in the
construction industry, an “employee” includes “[a]ll persons who are being paid
by a construction contractor as a subcontractor, unless the subcontractor
has validly elected an exemption as permitted by this chapter.” §
440.02(15)(c)2., Fla. Stat. (emphasis added). The definition section further
provides that an “employee” does not include

[a]n
officer of a corporation that is engaged in the construction industry who
elects to be exempt from the provisions of this chapter, as otherwise permitted
by his chapter. Such officer is not an employee for any reason until the notice
of revocation of election filed pursuant to s. 440.05 is effective.

§ 440.02(15)(d)8., Fla. Stat.

Here, it is undisputed that Gladden
had filed the required election for exemption and that the exemption was
current on the date of the accident. Thus, under the plain language of the
foregoing definitions, Gladden did not satisfy the definition of “employee” at
the time of the accident. If that were the end of the analysis, we could
readily conclude that Appellees were not entitled to immunity.

But the analysis cannot end there
because the Florida Supreme Court instructed in Weber v. Dobbins, 616
So. 2d 956 (Fla. 1993), that context matters. The question before this Court is
not whether Gladden, as an “employee,” is eligible to make a claim for workers’
compensation benefits as a result of his on-the-job accident. The question is
whether Appellees qualify for tort immunity under section 440.11.

In Weber, the Florida Supreme
Court expressly declined to apply the section 440.02 definition of “employee,”
which refers to “those persons who are entitled to file claims under the
Workers’ Compensation Law,” to “the context of granting statutory immunities
provided by the Workers’ Compensation Laws.” 616 So. 2d at 959. In that case, a
worker was injured while he was working under the direction of Howard Weber, a
corporate officer of Preferred Enterprise Signs. Id. at 957. The injured
worker made a claim for and received worker’s compensation benefits from
Preferred Enterprise Signs, but also filed a negligence action against Weber as
a result of his injuries. Id. Weber defended against the action based on
the immunity provisions in section 440.11, Florida Statutes (1983). Id.
at 958. The issue boiled down to whether Weber, who had elected to be exempt
from workers’ compensation coverage as a corporate officer, could benefit from
workers’ compensation immunity. Id. The answer was yes. In contrasting
the context in which the term “employee” is used in the definition section of
the Workers’ Compensation Law and the context it is used in the section
granting employers and employees immunity from liability claims, the court
concluded that “[a] particular person’s immunity from suit is not related to
that person’s entitlement to make a workers’ compensation claim.” Id. at
959. It explained that applying the relevant statutory sections literally,
without considering context, “would lead to an unreasonable or ridiculous conclusion.”
Id.

Gladden contends that by electing
the corporate officer exemption, he is in effect removing himself from the
entire workers’ compensation scheme and opening the door to actions in tort
against individuals and entities who would otherwise be entitled to workers’
compensation immunity. But that is asking too much of the benefit derived from
the corporate exemption in light of Weber and is inconsistent with other
provisions of the Workers’ Compensation Law. Section 440.05(14), Florida States
(2008), which governs the procedures for election of the corporate officer
exemption, makes clear that the quid pro quo for reduced workers’ compensation
premiums associated with the exemption is that the officer electing exemption
“may not recover benefits or compensation under [the Workers’ Compensation
Law].” See also § 440.077, Fla. Stat. (2008). The only provision in the
Workers’ Compensation Law that specifically addresses the impact of the
corporate exemption on workers’ compensation immunity is section 440.075, which
permits an exempt corporate officer to proceed against “the corporate
employer” at common law in an action to recover damages for injury or death. §
440.075, Fla. Stat. (2008) (emphasis added). Since the corporate employer reaps
the benefit of reduced workers’ compensation premiums for the exempt officer,
it makes sense that there is a risk associated with the benefit.

III.

Gladden’s exemption from workers’
compensation coverage does not equate to his ability to circumvent the immunity
protections of section 440.11, except as provided by section 440.075. We
therefore AFFIRM the trial court’s final summary judgments. (RAY, OSTERHAUS,
and BILBREY, JJ., CONCUR.)

__________________

1The “tipsy
coachman” doctrine allows an appellate court to affirm a trial court that
“reaches the right result, but for the wrong reasons” if there is “any basis
which would support the judgment in the record.” Robertson v. State, 829
So. 2d 901, 906 (Fla. 2002) (citation omitted).

2Section
440.02(9), Florida Statutes (2008), provides that “[a]s to persons engaged in
the construction industry, the term ‘officer of a corporation’ includes a
member owning at least 10 percent of a limited liability company created and
approved under chapter 608.”

3Chapter
440, Florida Statutes (2008), is known as the “Workers’ Compensation Law.”

4Because
Green-Simmons’ Cross-Appeal is a contingent appeal, both Green-Simmons and
Wilson Floor agree that the outcome of Gladden’s appeal will apply equally to
both Green-Simmons and Wilson Floor.

* * *