Third District Court of Appeal
State of Florida
Opinion filed October 19, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1314
Lower Tribunal No. 20-8089
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Bal Harbour Tower Condominium Association, Inc.,
Appellant,
vs.
Martin Bellorin,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, David C. Miller, Judge.
Cole, Scott & Kissane, P.A., and Therese A. Savona (Orlando), for
appellant.
Tenenbaum Law Group, PLLC and Jason Tenenbaum, for appellee.
Before SCALES, HENDON and LOBREE, JJ.
LOBREE, J.
In this premises liability action brought by Martin Bellorin for an injury
he incurred while employed as a valet by American Parking Systems, Inc.
(“APS”), the defendant Bal Harbour Tower Condominium Association, Inc.
(the “association”) appeals a nonfinal order denying its motion for final
summary judgment and determining that it is not entitled to workers’
compensation immunity. Because the association had a contractual
obligation under the relevant declaration of condominium to provide valet
services and sublet that obligation to APS, we conclude that the association
was Bellorin’s statutory employer under section 440.10(1)(b), Florida
Statutes (2021). The association is therefore entitled to statutory employer
immunity under workers’ compensation law. Accordingly, we reverse the
order denying the association’s motion for final summary judgment on the
ground of workers’ compensation immunity, and remand for further
proceedings.
BACKGROUND
The Bal Harbour Tower Condominium was established under chapter
718, Florida’s Condominium Act, by recording its declaration of
condominium. See § 718.104(2), Fla. Stat. (Supp. 1990). Section 8 of the
declaration of condominium is entitled “Ownership of Common Elements and
Restrictions Thereto,” and relevantly includes a subsection addressing
parking spaces:
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c. Automobile Parking Spaces - The parking
areas of the condominium contain Two Hundred Fifty
Six (256) individual parking spaces . . . . No guests,
employees, invitees, servants or agents of unit
owners shall ever self-park an automobile in the
parking areas of the condominium even if said
parking space has been assigned to the unit owner
by the developer. Valet parking service shall be
available and shall provide for not only the parking of
all unit owners’ automobiles but also parking for
owners’ second vehicles, if any, and vehicles of
guests, invitees and the authorized lessees of the
unit -owner. In addition thereto, parking valet service
shall provide for developer parking for prospective
unit purchasers and such other parties as the
developer may reasonably determine, so long as
developer has units for sale.
The association, through its directors and
officers, shall and it is hereby authorized to, contract
for the parking needs of the condominium unit
owners and their lessees, guests and invitees and
employees so as to provide a doorman and valet
parking service at all times. The charge for the
doorman and valet parking service shall be a
common expense of the condominium and not a
charge against those specific unit owners requesting
such service. . . .
All unit owners, their lessees, guests and
invitees shall use and be subject to “valet parking”
rules and regulations promulgated from time to time
by the board of directors in connection with same.
The association entered into a contract with APS to manage and operate
valet parking services at the Bal Harbour Tower Condominium. The contract
required APS to maintain workers’ compensation insurance, and the record
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shows that APS acquired that coverage.
Bellorin worked for APS as a valet at the Bal Harbour Tower
Condominium. Bellorin’s duties included carrying luggage to condominium
units. While he was delivering luggage, Bellorin was injured when a plastic
panel fell from the ceiling of the service elevator and hit his head. Bellorin
subsequently filed suit against the association alleging negligence based on
premises liability and seeking damages for his injury.
The association moved for final summary judgment, asserting that it
was Bellorin’s statutory employer pursuant to section 440.10(1)(b) because
it sublet to Bellorin’s employer, APS, its contractual obligation to provide
valet services to unit owners. As such, the association claimed it was entitled
to workers’ compensation immunity from civil liability under section 440.11,
Florida Statutes (2021). Bellorin responded that the association was not his
statutory employer because it was not contractually obligated to provide valet
services, and that, as a statutory entity, the association’s “duty to provide
tasks” arises only by statute. After a hearing, the trial court denied the
association’s motion for final summary judgment, finding that “Worker’s
Compensation Immunity does not apply to the [association] in this case
because the Declaration of Condominium and By-Laws are not a contract,
and therefore, do not impose a contractual obligation upon the [association]
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to provide valet parking services.” This appeal followed. 1
STANDARD OF REVIEW
We review a trial court’s summary judgment order determining that a
party is not entitled to workers’ compensation immunity as a matter of law de
novo. See Tampa Elec. Co. v. Gansner,
327 So. 3d 1281, 1283 (Fla. 2d DCA
2021); St. Lucie Falls Prop. Owners Ass’n v. Morelli,
956 So. 2d 1283, 1284
(Fla. 4th DCA 2007).
ANALYSIS
As below, the association argues that under the condominium’s
governing documents, specifically, the declaration of condominium, it has a
contractual obligation to provide valet services to unit owners at the Bal
1
Because the face of the order shows that the trial court determined the
association was not entitled to workers’ compensation immunity as a matter
of law, we have jurisdiction to review the nonfinal order denying summary
judgment under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(v)
(authorizing appeals from nonfinal orders that “determine . . . as a matter of
law, a party is not entitled to workers’ compensation immunity”). See Fla.
Highway Patrol v. Jackson,
288 So. 3d 1179, 1182, 1184 (Fla. 2020); Miami–
Dade Cnty. v. Pozos,
242 So. 3d 1152, 1156 (Fla. 3d DCA 2017) (explaining
that nonfinal orders denying summary judgment on a claim of workers’
compensation immunity are not appealable unless there is “a ‘determination,
on the face of the order’ that the defendant, as a matter of law, is precluded
from asserting workers’ compensation immunity”); cf. Amcon Builders, Inc.
v. Pardo,
120 So. 3d 1254, 1254 (Fla. 3d DCA 2013) (dismissing appeal of
nonfinal order denying employer’s motion for summary judgment based on
workers’ compensation immunity where order “simply denie[d] a motion for
summary judgment based on insufficient evidence” and made “no
determination on the issue of workers’ compensation immunity”).
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Harbour Tower Condominium, such that it is entitled to workers’
compensation immunity as Bellorin’s statutory employer under section
440.10(1)(b). This subdivision provides:
(b) 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). “For the association to be a contractor (and thus [Bellorin’s]
statutory employer) under section 440.10, it must show that it has a
contractual obligation to provide [valet] services to the unit owners,” Smith v.
Mariner’s Bay Condo. Ass’n, Inc.,
789 So. 2d 1228, 1229 (Fla. 3d DCA
2001), and that it “sublet[ ] any part or parts of [the] contract work to a
subcontractor,” § 440.10(1)(b). See Mathis v. Sacred Heart Health Sys.,
Inc.,
187 So. 3d 951, 952 (Fla. 1st DCA 2016); Miami Herald Publ’g. v. Hatch,
617 So. 2d 380, 382–84 (Fla. 1st DCA 1993). “To be considered a contractor
under section 440.10, [the association’s] ‘primary obligation in performing a
job or providing a service must arise out of a contract.’” Tampa Elec. Co.,
327 So. 3d at 1284 (quoting Sotomayor v. Huntington Broward Assocs. L.P.,
697 So. 2d 1006, 1007 (Fla. 4th DCA 1997)). See Smith,
789 So. 2d at
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1229 (“As a contractor, the association’s primary obligation in providing
security services to its residents must arise out of a contract.”). “Furthermore,
the ‘primary obligation’ refers to an obligation under the prime contract
between the contractor and a third party, not to any agreement between the
contractor and subcontractor.” Miami Herald Publ’g.,
617 So. 2d at 383.
Notably, “[t]he contractual obligation may be either express or implied-in-
fact; however, it cannot be based on a duty purely imposed by statutory or
common law.” Smith,
789 So. 2d at 1229 (citing Woods v. Carpet
Restorations, Inc.,
611 So. 2d 1303, 1304 (Fla. 4th DCA 1992)).
Here, there is record evidence that the association owed a contractual
obligation to third parties, i.e., unit owners, to provide valet services for them
as well as their guests, employees, invitees, servants or agents. This is so
because “[a] declaration [of condominium] operates as a contract among unit
owners and the association, outlining their respective rights and
responsibilities.” Williams v. Salt Springs Resort Ass'n, Inc.,
298 So. 3d
1255, 1260 (Fla. 5th DCA 2020). Accord Cohn v. Grand Condo. Ass’n, Inc.,
62 So. 3d 1120, 1121 (Fla. 2011) (“A declaration of condominium possesses
‘attributes of a covenant running with the land’ and operates as a contract
among unit owners and the association, ‘spelling out mutual rights and
obligations of the parties thereto.’”) (emphasis added) (quoting Woodside
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Vill. Condo. Ass’n v. Jahren,
806 So. 2d 452, 456 (Fla. 2002)); Dimitri v.
Com. Ctr. of Miami Master Ass’n, Inc.,
253 So. 3d 715, 718 (Fla. 3d DCA
2018) (“An association declaration is a contract . . . .”); 814 Prop. Holdings,
LLC v. New Birth Baptist Church Cathedral of Faith Int’l, Inc., 47 Fla. L.
Weekly D1500 (Fla. 3d DCA July 13, 2022); LEN-CG S., LLC v. Champions
Club Condo. Ass’n, Inc.,
336 So. 3d 1245, 1248 (Fla. 5th DCA 2022).
Although the statutory scheme set forth in the Condominium Act also
governs the legal rights and responsibilities of the association and unit
owners, see Woodside Vill. Condo. Ass’n,
806 So. 2d at 456 (“[B]ecause
condominiums are creatures of statute courts must look to the statutory
scheme as well as the condominium declaration and other documents to
determine the legal rights of owners and the association.”); Grove Isle Ass’n,
Inc. v. Grove Isle Assocs., LLLP,
137 So. 3d 1081, 1090 (Fla. 3d DCA 2014),
the association’s obligation here springs from the specific valet parking
regulation set forth in section 8(c.) of the declaration of condominium. The
Condominium Act does not obligate condominium associations to provide
valet services to unit owners. Thus, the association’s primary obligation to
provide valet services to the unit owners arose under a contract, the
declaration of condominium, and not from its general statutory duty to
manage and maintain the condominium property. Compare Roberts v. Gator
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Freightways, Inc.,
538 So. 2d 55 (Fla. 1st DCA 1989) (holding that common
motor carrier should be treated as statutory employer because primary
obligation of carriage arose from contracts with customers, notwithstanding
carrier’s concurrent obligation to transport under federal regulations),
approved,
550 So. 2d 1117 (Fla. 1989), and Tampa Elec. Co., 327 So. 3d at
1284 (“Tampa Electric’s status as a statutory employer would not be
defeated by the existence of a regulatory obligation that overlaps with a
corresponding contractual obligation to maintain the equipment.” (citing id.)),
with Woods,
611 So. 2d at 1303 (holding, without discussing declaration of
condominium, that condominium association that entered into contract with
company to manage the condominium property was not a statutory employer
entitled to immunity from suit by injured employee of company because
obligation to “manage and maintain the condominium property . . . . is purely
statutory, not contractual”), and Smith,
789 So. 2d at 1230 (recognizing “that
an entity that has a contractual obligation, all or part of which is sublet to
another, is not exempt from being a statutory employer under section 440.10
merely because the performance of that obligation is regulated by statute,”
but holding that where record did not establish a contract between
association and unit owners for security services, condominium association
was not statutory employer in security guard’s suit for damages from slip and
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fall). The association, in turn, “sublet[ ]” this “contract work” to Bellorin’s
employer, APS. See § 440.10(1)(b), Fla. Stat. Therefore, because Bellorin’s
injury occurred while performing his duties as a valet for APS, the association
was Bellorin’s statutory employer under section 440.10(1)(b), and the
association was entitled to workers’ compensation immunity. See Miami-
Dade County v. Acosta,
757 So. 2d 539, 541 (Fla. 3d DCA 2000).
CONCLUSION
As well-established Florida law provides that a declaration of
condominium operates as a contract, the trial court erred in finding that the
association did not have a contractual obligation to provide valet services to
unit owners under section 8(c.) of the declaration of condominium, thereby
determining that the association was not entitled to workers’ compensation
immunity as Bellorin’s statutory employer. See §§ 440.10(1)(b), .11, Fla.
Stat. Accordingly, we reverse the nonfinal order denying the association’s
motion for final summary judgment based on workers’ compensation
immunity and remand for further proceedings consistent with this opinion.
Reversed and remanded.
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