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October 3, 2014 by admin

Workers’ Compensation immunity — employee’s right to bring action against entity which provided work comp benefits

39 Fla. L. Weekly D2049a


Torts — Workers’ compensation immunity — Trial court erred in finding that
contractor was estopped from asserting workers compensation immunity to bar an
action by the employee of a sub-subcontractor because defendant contractor
failed to notify its workers’ compensation carrier of plaintiff’s injury —
Defendant contractor was not liable for injuries sustained by plaintiff where
defendant had secured workers’ compensation coverage for plaintiff by virtue of
the coverage secured by its subcontractor — Defendant had no obligation to
notify its carrier of plaintiff’s injury and cannot be estopped from asserting
the immunity it enjoys by virtue of subcontractor’s having secured and having in
place workers’ compensation insurance coverage

VMS, INC. a/k/a VMS Maintenance Systems, Inc., Appellant, v. ELVIS ALFONSO,
Appellee. 3rd District. Case No. 3D13-1044. L.T. Case No. 11-43839. September
24, 2014. An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Jerald Bagley, Judge. Counsel: DeMahy Labrador Drake Victor &
Cabeza, Gregory A. Victor, Mark R. Boyd, Susana C. Nunez and Scott A. Markowitz,
for appellant. Beckham & Beckham, Pamela Beckham and Eugene Beckham, for
appellee.
(Before SHEPHERD, C.J., and WELLS and SCALES, JJ.)
(WELLS, Judge.) VMS, Inc. appeals from a partial summary judgment determining
that it was estopped from asserting workers’ compensation immunity to bar an
action sounding in negligence brought by the employee of a sub-subcontractor.
Because VMS secured the payment of compensation required by statute, we find
that VMS is not estopped from asserting such immunity and reverse.
As pertinent here, the facts are undisputed. Pursuant to a written contract,
VMS contracted with the Florida Department of Transportation to maintain and
manage portions of specified roadways and bridges in Palm Beach, Broward, and
Miami-Dade Counties. As part of that contract, VMS was obligated to secure, and
secured, workers’ compensation insurance.
In September 2008, VMS subcontracted road work in some of these counties to
ABC. That subcontract, like that between VMS and the Department of
Transportation, obligated ABC to secure workers’ compensation insurance. It is
undisputed that it did so.
Thereafter, ABC hired Lazaro Contreras to perform some of the work ABC had
obligated itself to do. Contreras in turn hired a number of day laborers
including Elvis Alfonso, the plaintiff here. On October 15 or 16, 2008, while
performing work covered by the VMS/ABC/Contreras contract, Alfonso was seriously
burned when hot tar spilled on him. Alfonso immediately was taken to the
hospital where it was reported that he had sustained the burns while working at
home.
While the evidence regarding VMS’ knowledge of this incident is disputed,
there is no dispute that Contreras did not have workers’ compensation insurance
and that ABC and VMS did not report this incident to their compensation
carriers. Alfonso also never asserted a claim for workers’ compensation
benefits; instead, on March 2, 2012, he filed suit against both ABC and VMS for
negligence. VMS responded, claiming workers’ compensation immunity and,
alternatively, comparative negligence either on Alfonso’s or other third
parties’ part. ABC eventually entered into a settlement agreement with Alfonso
and is no longer a party to this case.
Thereafter, Alfonso moved for entry of partial summary judgment against VMS,
arguing that VMS was estopped from claiming workers’ compensation immunity and
from asserting comparative negligence because VMS had failed to notify its
workers’ compensation carrier that Alfonso had been injured. The trial court
agreed; we reverse.
Section 440.10(1)(a) of the Florida Statutes provides that “[e]very employer
. . . shall be liable for, and shall secure, the payment to his or
her employees . . . the compensation payable under ss. 440.13,
440.15, and 440.16.” § 440.10(1)(a), Fla. Stat. (2013) (emphasis added). The
liability imposed on employers to “secure payment” of compensation requires only
that an employer insure and keep insured the payment of those
workers’ compensation benefits guaranteed by section 440.10(1)(a); it does not
impose a duty to actually pay benefits to an employee:

(1) Every employer shall secure the payment of compensation under
this chapter:

(a) By insuring and keeping insured the payment of such compensation
with any stock company or mutual company or association or exchange, authorized
to do business in the state;

(b) By furnishing satisfactory proof to the Florida Self-Insurers
Guaranty Association, Incorporated, created in s. 440.385, that it has the
financial strength necessary to ensure timely payment of all current and future
claims individually and on behalf of its subsidiary and affiliated companies
with employees in this state and receiving an authorization from the department
to pay such compensation directly. . . .

§ 440.38, Fla. Stat. (2013); Mena v. J.I.L. Constr. Group Corp., 79
So. 3d 219, 225 n.1 (Fla. 4th DCA 2012) (rejecting the notion that the term
“secure payment of compensation” imposes an “automatic duty to actually pay
benefits,” but only requires that payment be insured “with any stock company or
mutual company or association or exchange, authorized to do business in the
state” (quoting § 440.38, Fla. Stat. (2004))); see also Limerock
Indus., Inc. v. Pridgeon
, 743 So. 2d 176, 177 (Fla. 1st DCA 1999) (finding
section 440.38’s requirement that the employer “secure payment of compensation”
was satisfied where the employer “secur[ed] a policy of workers’ compensation
insurance that covered the injured employee”).
Because section 440.11(1) of the Florida Statutes makes the liability to
secure compensation imposed by section 440.10(1) the exclusive form of liability
imposed by Chapter 440 on an employer, once an employer acquires and maintains
workers’ compensation insurance for the benefit of its employees, it becomes
immune from suit. See § 440.11(1), Fla. Stat. (2013)1; Walker v. United Steel Works, Inc., 606 So.
2d 1243, 1244 (Fla. 2d DCA 1992) (“Section 440.11(1) makes [the] liability to
secure compensation the exclusive form of liability of the employer.”).
Section 440.10(1)(b) extends the liability imposed by section 440.10(1)(a) on
employers to secure insurance coverage for the payment of workers’ compensation
benefits to contractors requiring them to secure coverage for the employees of
subcontractors engaged on sublet contract work:

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
.

§ 440.10(1)(b), Fla. Stat. (2013) (emphasis added).
As the Florida Supreme Court has confirmed, liability is imposed on employers
by these provisions only to secure workers’ compensation insurance coverage and
when an employer subcontracts part of its work to another, that
contractor/employer is liable only for assuring that workers’ compensation
coverage has been secured for the subcontractor’s employees:

Section 440.10 establishes the concept of “statutory employer” for
contractors who sublet part of their work to others. Section 440.11 provides
that the liability established in section 440.11 is “exclusive.” The effect of
section 440.10 is that where a subcontractor performing part of the work of a
contractor fails to secure payment of compensation, the contractor is liable for
same. If both subcontractor and contractor fail to secure
coverage
, then the contractor has an employer’s liability to the
subcontractor’s injured employee for purposes of an action for statutory
benefits or damages at law. Thus even when a subcontractor agrees to
secure coverage
for its employees, a prudent contractor will prepare for
or insure against its contingent liability as “statutory employer” in case the
subcontractor fails to do so.

The exclusiveness of liability provided for by section 440.11
extends to an employer’s “liability” as defined in section 440.10. Thus a
contractor who sublets part of its work to a subcontractor, being liable to
secure coverage
for employees of its subcontractor, is also immune from suit
by such employees when such coverage has been secured
. It is the
liability to secure coverage for such employees in the event the subcontractor
does not do so that immunizes a contractor from suit by such
employees
.

Motchkavitz v. L.C. Boggs Indus., Inc., 407 So. 2d 910, 912-13 (Fla.
1981) overruled on other grounds by Employers Ins. of Wausau v.
Abernathy
, 442 So. 2d 953 (Fla. 1983) (emphasis added) (citation omitted);
see also Miami-Dade County v. Acosta, 757 So. 2d 539, 541 (Fla. 3d
DCA 2000) (“It is clear that section 440.10(1)(b) places on the statutory
employer [(the contractor)] . . . the responsibility for providing, or ensuring
that the subcontractor provides, workers’ compensation coverage to
its, including its subcontractors’, employees”) (emphasis added); Adams Homes
of Nw. Fla., Inc. v. Cranfill
, 7 So. 3d 611, 613 (Fla. 5th DCA 2009)
(“[W]here the statutory employer secures coverage or ensures that
the subcontractor does so
, the statutory employer is immune from suit
for the employees’ personal injuries.”) (emphasis added). “Put differently,
‘where a subcontractor performing part of the work of a contractor fails to
secure payment of compensation, the contractor is liable for the same.’ ”
Mena, 79 So. 3d at 224-25 (quoting Amorin v. Gordon, 996 So. 2d
913, 916 (Fla. 4th DCA 2008) (quoting Motchkavicz, 407 So. 2d at 912).
In this case, there is no dispute that VMS secured coverage for ABC’s
employees by virtue of the insurance coverage secured by its subcontractor, ABC.
Having satisfied this obligation, VMS was not liable for injuries sustained by
any of ABC’s or Contreras’ employees while at work. See § 440.10(1)(b),
Fla. Stat. (2013); § 440.11(1), Fla. Stat. (2013).
This outcome is not affected by this court’s decision in Ocean
Reef Club, Inc. v. Wilczewski
, 99 So. 3d 1 (Fla. 3d DCA 2012), because
no contractors or subcontractors were involved in that case. There, two
employees sued their employer for work-related illnesses and because that
employer failed to notify its workers’ compensation insurance carrier of their
claims this court determined that the employer was estopped from asserting in
the civil suit the immunity that the insurance otherwise conferred. While that
decision might have some application to ABC’s ability to assert its immunity
from suit, it has no bearing on VMS’s ability to do so.
Rather, as the court in Mena confirmed, because contractor/VMS is
“liable” solely for assuring that subcontractor/ABC secured and had in place
workers’ compensation insurance, or, alternatively, had secured its own
insurance in the event ABC failed to do so, VMS was not liable for injuries to
ABC’s or to Contreras’ workers and had no obligation to notify its carrier of
Alfonso’s injury:

J.I.L. [the sub-subcontractor] procured a policy of worker’s
compensation insurance that was in effect for the date of Mena’s accident. Slorp
[the subcontractor] verified that J.I.L. had coverage. Slorp was Mena’s
statutory employer because it owed a contractual obligation to the general
contractor and subcontracted a portion of that work to J.I.L., thus taking
on the responsibility to provide coverage for Mena in the event J.I.L. failed to
do so
. See Candyworld, Inc. v. Granite State Ins. Co., 652 So. 2d
1165, 1167 (Fla. 4th DCA 1995); Woods v. Carpet Restorations, Inc., 611
So. 2d 1303, 1304 (Fla. 4th DCA 1992). “[W]here the statutory employer
secures coverage
or ensures that the subcontractor does
so
, the statutory employer is immune from suit for the employees’
personal injuries.” Adams Homes of Nw. Fla., Inc. v. Cranfill, 7 So. 3d
611, 613 (Fla. 5th DCA 2009) (emphasis added). Accord Latite Roofing &
Sheet Metal Co. v. Barker,
886 So. 2d 1064, 1066 (Fla. 4th DCA 2004)
(contractor “performed in the way the statute sought to encourage” and was
“entitled to immunity” where it verified that its subcontractor had coverage);
Motchkavitz, 407 So.2d at 913 (“It is the liability to secure coverage
for such employees in the event the subcontractor does not do so that immunizes
a contractor from suit by such employees.”). Consequently, Slorp was immune from
Mena’s negligence action, and we affirm the trial court’s entry of summary
judgment for Slorp.

Mena,79 So. 3d at 225. Thus, the fact that ABC may have been estopped
from asserting the exclusive remedy provided to it by Chapter 440 had no effect
on VMS’ liability or the immunity accorded to VMS by law.
In short, “so long as security for compensation is maintained for all [its]
statutory employees, the contractor[ ] obligated to secure such compensation
[is] immune from suit.” Walker, 606 So. 2d at 1244; see also
Brickley v. Gulf Coast Constr. Co., 14 So. 2d 265, 266 (Fla. 1943) (“If
payment of compensation has been secured by the general contractor, either
directly or through the sub-contractor, a recovery for injury or death arising
out of and in the course of the contract work is exclusively under the Workmen’s
Compensation Law, for compensation.”); Acosta, 757 So. 2d at 541
(“[W]here the statutory employer secures coverage, or ensures that the
subcontractor does so, the statutory employer is immune from suit for the
employee’s personal injuries.”); Limerock Indus., Inc., 743 So. 2d at 177
(reversing a finding that the employer was not entitled to workers’ compensation
immunity in a civil negligence action, where the employer “had secured payment
of compensation by securing a policy of workers’ compensation insurance that
covered the injured employee”); Broward County v. Rodrigues, 686 So. 2d
774, 775 (Fla. 4th DCA 1997) (“When the statutory employer [secures coverage for
its statutory employees], the statutory employer is immune from suit for the
employee’s personal injuries, as worker’s compensation is the exclusive
remedy.”).
For these reasons, we find that VMS had no obligation to notify its carrier
of Alfonso’s injury and cannot be estopped from asserting the immunity it enjoys
by virtue of ABC having secured and having in place workers’ compensation
insurance coverage.
Accordingly, the order granting summary judgment in favor of Alfonso is
reversed.
Reversed and remanded.
__________________
1Section 440.11(1) provides:

The liability of an employer prescribed in s. 440.10 shall be
exclusive and in place of all other liability, including vicarious liability, of
such employer to any third-party tortfeasor and to the employee, the legal
representative thereof, husband or wife, parents, dependents, next of kin, and
anyone otherwise entitled to recover damages from such employer at law or in
admiralty on account of such injury or death . . . .

§ 440.11(1), Fla. Stat. (2013).
__________________
(Before, SHEPHERD, C.J., and WELLS, SUAREZ, ROTHENBERG, LAGOA, SALTER, EMAS,
FERNANDEZ, LOGUE and SCALES, JJ.)

On En Banc Consideration

During the pendency of this action, it has come to this Court’s attention
that a statement made in dicta in Catalfumo
Construction, LLC v. Varella
, 28 So. 3d 963, 965 (Fla. 3d DCA 2010),
that as a consequence of a subcontractor’s insurer’s denial of a worker’s claim,
the contractor at issue there was required to provide “workers’ compensation”
for the subcontractor’s employee is at odds with the opinion herein. We
therefore recede from that statement in Catalfumo and confirm the
determination made herein that to benefit from the immunity conferred by
sections 440.10 and 440.11 of the Florida Statutes, a contractor need only
ensure that workers’ compensation insurance coverage has been secured for each
worker for whom it is the statutory employer; the contractor need not ensure
that actual payment of these insurance benefits be made to such employees.

* * *

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