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Fla. L. Weekly D2501bTop of Form

Torts
— Workers’ compensation immunity — Trial court erred in entering partial
summary judgment precluding defendant from relying on affirmative defense of
workers’ compensation immunity — Under circumstances, defendant’s initial
denial of claim did not automatically estop defendant from asserting workers’
compensation immunity

FIST CONSTRUCTION, INC., Appellant,
v. SANTOS OBANDO, Appellee. 3rd District. Case No. 3D16-2706. L.T. Case No.
14-30116. November 29, 2017. An Appeal from non-final orders from the Circuit
Court for Miami-Dade County, Samantha Ruiz-Cohen, Judge. Counsel: Conroy
Simberg and Diane H. Tutt (Hollywood), for appellant. Wasson & Associates,
Chartered, and Annabel C. Majewski; DLD Lawyers and Frank L. Labrador, for
appellee.

(Before ROTHENBERG, C.J., and SUAREZ
and SALTER, JJ.)

(SALTER, J.) Fist Construction, Inc.
(“Fist Construction”), appeals a partial summary judgment in favor of an
injured laborer (plaintiff below), Santos Obando, precluding Fist Construction
from relying on its affirmative defense of workers’ compensation immunity. We
have jurisdiction to review the order under Florida Rule of Appellate Procedure
9.130(a)(3)(C)(v).

Another defendant in the action
below was the general contractor for a residential construction project in Homestead,
Florida. Yet another defendant was subcontracted to perform roofing work at the
project, and that subcontractor further subcontracted with Fist Construction to
perform some or all of that work. A foreman and supervisor for Fist
Construction, Hector Lopez (also a defendant below), hired Mr. Obando as a
laborer1 to perform part of the roofing work
that had been subcontracted to Fist Construction.

Mr. Obando alleges that he was
injured while performing roof work at the project in January 2014. Through
counsel, Mr. Obando filed petitions for workers’ compensation claims with the
general contractor and the prime roofing subcontractor (not Fist Construction),
but these claims were denied on the basis that Mr. Obando was not an employee
of either of those companies at the time of the accident. Following the denial,
Mr. Obando filed circuit court tort claims against the general contractor, the
prime roofing subcontractor and its principal, Fist Construction, and Mr.
Lopez.

Several months after Mr. Obando
commenced his lawsuit, the prime roofing contractor’s attorney contacted a
claims adjuster for Fist Construction’s workers’ compensation carrier and
notified her that Mr. Obando had been injured, with “multiple employers
involved.” Mr. Obando testified that he had no knowledge of, or contact with,
Fist Construction (only with Mr. Lopez), and the owner of Fist Construction initially
provided a letter on behalf of the company disclaiming any knowledge of Mr.
Obando:

This firm
has no knowledge of who this person is, as he has never been employed by us.
There never been [sic] an application for employment filed under that name with
this Company. So, we have no records to produce or forward to anyone.

Subsequently, however, Mr. Obando
submitted a petition for workers’ compensation benefits to Fist Construction’s
workers’ compensation carrier. In its response to the petition, the carrier
agreed to pay Mr. Obando’s medical bills and expenses from the hospital
emergency room “once they have been submitted and reviewed,” and to authorize
additional treatment at a health center.

Fist Construction asserted workers’
compensation immunity as an affirmative defense to Mr. Obando’s second amended
complaint, and each party filed a motion for partial summary judgment on that
issue. The trial court granted Mr. Obando’s motion, which argued that Fist
Construction’s words and actions had waived the immunity defense under such
cases as Ocean Reef Club v. Wilczewski, 99 So. 3d 1 (Fla. 3d DCA 2012),
and Timmeny v. Tropical Botanicals Corp., 615 So. 2d 811 (Fla. 1st DCA
1993). Fist Construction’s appeal from that order followed.

Analysis

On this record of subcontracts,
handshake agreements, and a laborer hired for cash by the supervisor of a
subcontractor (rather than the subcontractor itself), the identity of the
“statutory employer” and related questions of estoppel and waiver involve
disputed facts inappropriate for summary judgment. In the present case, it
cannot be said that the facts are “so crystallized that nothing remains but
questions of law.” Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985).
Critical facts which are not in dispute include these: Mr. Obando’s injury
occurred in the course and scope of his work on the residential roofing
project; Mr. Obando’s compensation and direction came via Fist Construction and
its supervisor; Fist Construction had in force a policy of workers’
compensation insurance; and that insurer accepted Mr. Obando’s claim as
compensable and provided benefits following the identification of the insured
entity and the submission of a petition for workers’ compensation benefits.

Any penalty accruing because of Fist
Construction’s delay in reporting Mr. Obando’s claim in this case is an issue
for consideration within the statutory administrative process applicable to
workers’ compensation claims. And an initial denial of liability or benefits
does not automatically estop an employer from asserting workers’ compensation
immunity. Fly & Form, Inc. v. Marquez, 19 So. 3d 403 (Fla. 3d DCA
2009).

The primary case advanced by Mr.
Obando’s counsel before the trial court, Ocean Reef Club, Inc. v. Wilczewski,
99 So. 3d 1 (Fla. 3d DCA 2012), is distinguishable. In that case, the workers’
compensation insurer denied two employees’ claims based on a position that the
employees’ illnesses did not occur during the course and scope of employment.
“The claims also were denied because the statute of limitations had run.” Id.
at 2. In the employees’ subsequent civil action, the employer took the opposite
position, contending that the alleged injuries were work-related and that the
employer was immune from suit. The trial court correctly denied the employer’s
motion for summary judgment on grounds of workers’ compensation immunity, and
this Court affirmed.

Similarly, Mr. Obando’s counsel
urged the trial court to grant the motion for partial summary judgment on
grounds of estoppel based on Timmeny v. Tropical Botanicals Corp., 615
So. 2d 811 (Fla. 1st DCA 1993). That case also involved a different set of
controlling facts than the case at hand. The estoppel in Timmeny was
imposed because the employer failed to notify the employee claimant of possible
coverage, but then attempted to invoke the statute of limitations as a defense
when the employee filed a lawsuit. The First District held that estoppel
applied because the employer had the same knowledge as the claimant regarding
the possible cause and compensability of the injury or disease, but failed to
provide the employee with information regarding the potentially compensable
nature of the claim.

In the present case, the claims were
not denied by the carrier once the parties’ investigation identified the
employer and carrier. The owner of Fist Construction initially denied knowing
Mr. Obando or having any records regarding him, but there was never a denial
that Mr. Obando’s injury was work-related, that Fist Construction’s foreman at
the time hired and paid Mr. Obando, and that Fist Construction had workers’
compensation insurance in place. The statute of limitations was not an issue
addressed in Mr. Obando’s motion for summary judgment.

For these reasons, we reverse the
partial summary judgment order and the trial court’s determination that, as a
matter of law, Fist Construction could not assert workers’ compensation
immunity. We remand the case to the trial court for further proceedings.

__________________

1There was
deposition testimony in the record, a part of the summary judgment evidence,
that Mr. Lopez hired and paid Mr. Obando in cash as an independent contract
laborer, and that Mr. Lopez received the funds for those payments from Fist
Construction. Mr. Obando contends that Fist Construction was not his “employer”
for purposes of the workers’ compensation statutes.