39 Fla. L. Weekly D209b
contractor and plumbing subcontractor by plaintiff who was injured during the
course and scope of his employment while helping to install a pipe after
delivering it to job site from plumbing supply company — Trial court erred in
entering summary judgment for defendants on basis of workers’ compensation
immunity where there was a factual issue as to whether plaintiff was employed by
defendant plumbing subcontractor or by plumbing supply company — Trial court
properly entered summary judgment for defendant who was the president of both
plumbing subcontractor and plumbing supply company because it is undisputed that
plaintiff was employed by one of these entities
et al., Appellees. 3rd District. Case No. 3D12-2654. L.T. Case No. 10-37264.
Opinion filed January 22, 2014. An Appeal from the Circuit Court for Miami-Dade
County, David C. Miller, Judge. Counsel: David M. Shenkman; Robert Rosenblatt;
Hunter Williams and Lynch, and Christopher Lynch, for appellants. Eduardo Cosio
and Julie Bork Glassman; Cole Scott & Kissane and Anne Sullivan Magnelli,
and property of her husband, Alberto Zambrana, and as guardian of her children,
Milena and Miledais Zambrana, (“Pena”) appeals from a final summary judgment
entered in favor of Design-Build Interamerican, Inc. (“DBI”), Manny Leon, Pedro
Ramos, Sergio Ruiz (collectively, the “DBI Defendants”), Joel Gonzalez, Samuel
Gonzalez, and Jose Castelnaux, a/k/a Jose Bonne (collectively, the “Royal
Plumbing Defendants”). The trial court entered summary judgment in favor of
these Defendants, finding there were no genuine issues of material fact, and
that Defendants were entitled to worker’s compensation immunity under section
440.11(1), Florida Statutes (2008). We reverse, holding that a genuine issue of
material fact remains in dispute whether, at the time of the accident and for
purposes of worker’s compensation immunity, Zambrana was employed by Royal
Plumbing Corporation or One Stop Plumbing Supply, Inc.
on a construction project at a leased processing plant in Miami. Manny Leon was
the president of DBI; Pedro Ramos was its vice-president; and Sergio Ruiz was an
employee of DBI. Royal Plumbing Corporation (“Royal Plumbing”) was the plumbing
subcontractor, and One Stop Plumbing Supply, Inc. (“One Stop Plumbing”) supplied
plumbing parts to Royal Plumbing. Joel Gonzalez was the president of both Royal
Plumbing and One Stop Plumbing, and the two companies operated out of a single
location. Samuel Gonzalez and Jose Castelnaux a/k/a Jose Bonne (“Bonne”) were
employees of Royal Plumbing. Alberto Zambrana worked as a plumbing supply
deliveryman for either Royal Plumbing or One Stop Plumbing (or both).
delivered a steel pipe to the construction site. Once at the site, he was told
by Alberto Bogantes, a Royal Plumbing employee, to take the steel pipe to an
upper level location. Zambrana helped carry the pipe up to the second level, and
held the pipe in place while it was installed.1 As he was walking toward the lift to return to the
lower level, Zambrana stepped on a false ceiling and fell from the upper level
some twenty feet to the ground below. Zambrana was seriously injured, leaving
him in a persistent vegetative state. His wife, Pena, was appointed plenary
guardian of Zambrana, and filed a lawsuit on his behalf against the DBI
Defendants and the Royal Plumbing Defendants2 for negligence and for loss of consortium on behalf
of herself and Zambrana’s two children.
her husband’s injuries from State Farm Florida Insurance Company, the worker’s
compensation insurer for both Royal Plumbing and One Stop Plumbing. In their
answers to the amended complaint, all of the Defendants asserted worker’s
compensation immunity as an affirmative defense, and they later filed motions
for summary judgment on this basis.
was an employee of Royal Plumbing or One Stop Plumbing. Pena asserted there
remained genuine issues of disputed fact regarding whether Zambrana was employed
by Royal Plumbing or by One Stop Plumbing, precluding summary judgment on the
basis of worker’s compensation immunity, and further, that exceptions existed to
any claim of worker’s compensation immunity. The trial court concluded there
were no genuine issues of material fact, and found that Zambrana was a Royal
Plumbing employee. The trial court entered final summary judgment in favor of
the DBI Defendants and the Royal Plumbing Defendants. This appeal followed.
Shevin, 767 So. 2d 524 (Fla. 2000). In doing so, we must review the record
in a light most favorable to the non-moving party. Delandro v. America’s
Mortg. Servicing, Inc., 674 So. 2d 184 (Fla. 3d DCA 1996). Importantly,
“[i]f the evidence raises any issue of material fact, . . . is conflicting, [or]
permit[s] different reasonable inferences, . . . it should be submitted to the
jury as a question of fact.” Moore v. Morris, 475 So. 2d 666, 668 (Fla.
in this case. However, Pena contends the evidence is conflicting as to whether
Zambrana was employed by Royal Plumbing or One Stop Plumbing at the time of the
accident, and thus, the jury must decide that issue before the court can
determine whether Appellees are entitled to worker’s compensation immunity as a
matter of law. After reviewing the record in the light most favorable to Pena,
to provide worker’s compensation coverage for their employees. Deen v.
Quantum Res., Inc., 750 So. 2d 616 (Fla. 1999). The Worker’s Compensation
Law was enacted to “assure the quick and efficient delivery of disability and
medical benefits to an injured worker.” § 440.015, Fla. Stat. (2008). Of
significance, the Legislature has expressed the following legislative intent:
[T]he worker’s compensation system in Florida is based on a mutual
renunciation of common-law rights and defenses by employers and employees
. . . .
[D]isputes concerning the facts in workers’ compensation cases are
not to be given a broad liberal construction in favor of the employee on the one
hand or the employer on the other hand, and the laws pertaining to worker’s
compensation are to be construed in accordance with the basic principles of
statutory construction and not liberally in favor of either employee or
Court has observed:
workers’ compensation benefits, the statute provides to such employers an
immunity from tort lawsuits by employees” under certain circumstances.
Deen, 750 So. 2d at 618. This system “provides employees limited medical
and wage loss benefits, without regard to fault, for losses resulting from
workplace injuries in exchange for the employee relinquishing his or her right
to seek certain common law remedies from the employer for those injuries under
certain circumstances.” Jones v. Martin Elecs., Inc., 932 So. 2d 1100
(Fla. 2006). “It is the obligation to secure workers’ compensation that gives
the employer immunity from suit as a third-party tortfeasor.” Cuero v. Ryland
Grp. Inc., 849 So. 2d 326, 328 (Fla. 2d DCA 2003) (citing Jones v. Fla.
Power Corp., 72 So. 2d 285, 287 (Fla. 1954)).
Every employer coming within the provisions of this chapter shall be
liable for, and shall secure, the payment to his or her employees . . . of the
compensation payable under ss. 440.13, 440.15, and 440.16. Any contractor or
subcontractor who engages in any public or private construction in the state
shall secure and maintain compensation for his or her employees under this
chapter as provided in s. 440.38.
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 engage 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.
(Fla. 5th DCA 2009) (noting statutory employer who ensures that subcontractor
secures worker’s compensation coverage is immune from suit for the employees’
employed by Royal Plumbing (rather than One Stop Plumbing), DBI would be
considered Zambrana’s statutory employer and would also be entitled to worker’s
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, except as follows:
(a) If an employer fails to secure payment of compensation as
required by this chapter . . . .
(b) When an employer commits an intentional tort that causes the
injury or death of the employee. For purposes of this paragraph, an employer’s
actions shall be deemed to constitute an intentional tort and not an accident
only when the employee proves, by clear and convincing evidence,
1. The employer deliberately intended to injure the employee;
2. The employer engaged in conduct that the employer knew, based on
prior similar accidents or on explicit warnings specifically identifying a known
danger, was virtually certain to result in injury or death to the employee, and
the employee was not aware of the risk because the danger was not apparent and
the employer deliberately concealed or misrepresented the danger so as to
prevent the employee from exercising informed judgment about whether to perform
. . . .
The same immunities from liability enjoyed by an employer shall
extend as well to each employee of the employer when such employee is acting in
furtherance of the employer’s business and the injured employee is entitled to
receive benefits under this chapter. Such fellow-employee immunities shall not
be applicable to an employee who acts, with respect to a fellow employee, with
willful and wanton disregard or unprovoked physical aggression or with gross
negligence when such acts result in injury or death.
. . . .
The same immunity provisions enjoyed by an employer shall also apply
to any sole proprietor, partner, corporate officer or director, supervisor, or
other person who in the course and scope of his or her duties acts in a
managerial or policymaking capacity and the conduct which caused the alleged
injury arose within the course and scope of said managerial or policymaking
duties and was not a violation of a law, for which the maximum penalty which may
be imposed does not exceed 60 days’ imprisonment as set forth in s.
statutory employer) be entitled to immunity, so too would his fellow employees
and the employees of Zambrana’s statutory employer. Fla. Dep’t of Transp. v.
Juliano, 864 So. 2d 11 (Fla. 3d DCA 2003). If Royal Plumbing was Zambrana’s
employer, all of the DBI Defendants and Royal Plumbing Defendants would be
entitled to immunity, absent the application of any statutory exception. If
however, Zambrana was employed by One Stop Plumbing, a supply company and not a
subcontractor, none of the Appellees would be entitled to immunity.3
and that Zambrana was a Royal Plumbing employee. Pena contends the trial court
erred because genuine issues of material fact remain in dispute on this
Royal Plumbing was Zambrana’s employer:
– Zambrana’s employee file included: an employment application on
Royal Plumbing letterhead; W-2 forms for 2006-2008 listing Royal Plumbing as
Zambrana’s employer; a new hire reporting form for the State of Florida from
Royal Plumbing referencing Zambrana’s hiring; weekly pay stubs from Royal
Plumbing to Zambrana dated August 10, 2006 through April 9, 2008;
– Pena (Zambrana’s wife) testified at her deposition that Royal
Plumbing employed her husband;
– The petition for worker’s compensation benefits signed by Pena
listed Royal Plumbing as Zambrana’s employer;
– Pena named Royal Plumbing as Zambrana’s employer in her answers to
interrogatories served in this case;
– Yairis Gonzalez, the individual identified by Royal Plumbing as
the person with most knowledge as to Zambrana’s employment, testified in her
deposition that Royal Plumbing was Zambrana’s employer on the date of the
accident and for a couple of years prior. She also testified that Zambrana
delivered supplies for Royal Plumbing to its job sites and that One Stop
Plumbing had its own separate driver for delivering supplies to other plumbers
not employed by Royal Plumbing;
– Joel Gonzalez, President of both Royal Plumbing and One Stop
Plumbing, averred in an affidavit that Zambrana was employed only by Royal
Plumbing, and never by One Stop Plumbing.
One Stop Plumbing was Zambrana’s employer:
– Joel Gonzalez, the President of both Royal Plumbing and of One
Stop Plumbing, testified in his deposition that Zambrana was employed by One
– Nancy Hall, a representative from State Farm, the worker’s
compensation insurance carrier, testified that based on auditor’s reports
(prepared by an outside auditor) Zambrana was designated an employee of One Stop
– Bonne, an employee of Royal Plumbing, testified at his deposition
that Zambrana made plumbing supply deliveries to job sites in a company truck
with the Royal Plumbing logo and that Royal Plumbing and One Stop Plumbing were
the “same thing;”
– Bogantes, another Royal Plumbing employee, testified that Zambrana
was a “co-worker” hired as a driver to deliver plumbing materials, and that
sometimes the delivery vehicle was a Royal Plumbing car or sometimes “it could
have been One Stop Plumbing.”
Plumbing employee, we hold that, under our standard of review, and the standard
to be applied by the trial court on a motion for summary judgment,6 a genuine issue of material fact remains in dispute
and summary judgment was improperly granted.
Plumbing and One Stop Plumbing, and it is undisputed that Zambrana was
employed by at least one of these entities, Joel Gonzalez would be
entitled to immunity under either scenario unless one of the few exceptions,
provided in section 440.11, applies. Those exceptions include where the
employer, supervisor or manager “engages in an intentional act designed to
cause, or substantially certain to cause, injury or death to an employee;” or
where the employer/supervisor/manager is culpably or criminally negligent.
Byers v. Ritz, 890 So. 2d 343, 346-47 (Fla. 3d DCA 2004). See
also, § 440.11(1), Fla. Stat. (2008). Florida courts have construed these
statutory exceptions to apply “only if the conduct causing the injury was within
the scope of [the employer’s supervisors, or manager’s] managerial or
policy-making duties.” Goodman v. Hartigan, 862 So. 2d 890, 893 (Fla. 5th
DCA 2003). See also, Woodson v. Ivey, 917 So. 2d 993 (Fla. 5th DCA
2005); Emergency One, Inc. v. Keffer, 652 So. 2d 1233 (Fla. 1st DCA
1995). “In determining the immunity of managers and supervisors, the focus
should be on the business purpose (or absence thereof) of the decision in
question, not necessarily on the means utilized to accomplish that purpose.”
Woodson, 917 So. 2d at 993 (finding that although an owner’s decision to
direct his unlicensed employee to drive a motorcycle from a job-site back to the
office was a poor one, it was nonetheless a managerial decision for which he was
immune from suit). Pena asserts that Joel Gonzalez’s decision to go on vacation
instead of being present to supervise the job site did not constitute a
managerial or policymaking function, and thus he was not entitled to immunity.
We disagree. Rather, we hold that the owner’s decision to leave other managerial
staff in charge while he is himself unavailable serves a “business purpose,” and
therefore, Joel Gonzalez’s actions in doing so do not exempt him from the
immunity he was otherwise entitled to under section 440.11(1).
for Joel Gonzalez and remand for proceedings consistent with this opinion.
feet long by three inches in diameter and weighed 300-400 pounds.
defendant, but Pena voluntarily dismissed the company prior to entry of the
final summary judgment. The Architects Group, Inc., which was also named as (and
remains) a defendant below, is not involved in this appeal.
Gonzalez, President of both One Stop Plumbing and Royal Plumbing. As an officer
of both companies, he would be entitled to immunity under section 440.11(1)
(absent any statutory exception to immunity), regardless of whether Zambrana was
employed by One Stop Plumbing or Royal Plumbing.
taken, Joel Gonzalez changed this testimony in an errata sheet prepared two
months after his deposition, in which he stated that Zambrana was employed by
Royal Plumbing, not One Stop Plumbing. Of course, both the deposition testimony
and the errata sheet itself constitute admissible evidence. Motel 6, Inc. v.
Dowling, 595 So. 2d 260 (Fla. 1st DCA 1992).
Plumbing’s employee records showed that Zambrana was employed by Royal Plumbing,
she would have no ability to dispute that fact.
judgment, it is not for the trial court to determine whether the plaintiff can
prove her case, but only whether the record evidence establishes conclusively
that the plaintiff cannot prove her case. If the record evidence raises even the
slightest doubt, summary judgment is not appropriate. Williams v. Fla. Realty
& Mgmt. Co., 272 So. 2d 176 (Fla. 3d DCA 1973). Stated another way, the
function of the trial court on a motion for summary judgment is to determine
whether there exist any genuine issues of material fact, not to adjudicate those
genuine issues of material fact.. Trs. Of Internal Improvement Fund of Fla.
v. Sutton, 206 So. 2d 272 (Fla. 3d DCA 1968).
* * *