NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MICHAEL SCOTT WERT; RUBBER )
APPLICATIONS, INC., a Florida )
corporation; and FCCI COMMERCIAL )
INSURANCE CO., )
)
Appellants, )
)
v. ) Case Nos. 2D14-1525
) 2D14-2724
MICHAEL CAMACHO and STEPHANIE ) 2D14-3209
CAMACHO, ) CONSOLIDATED
)
Appellees. )
)
Opinion filed March 30, 2016.
Appeals from the Circuit Court for Polk
County; J. Dale Durrance, Judge.
Sharon C. Degnan of Kubicki Draper,
Fort Lauderdale, for Appellants.
M. Lance Holden of Brennan, Holden &
Kavouklis, P.A., Winter Haven; and
Joel D. Eaton of Podhurst Orseck,
P.A., Miami, for Appellees.
MORRIS, Judge.
Michael Scott Wert and Rubber Applications, Inc., appeal a final judgment
entered against them on Michael and Stephanie Camachos' complaint for negligence
against Wert and vicarious liability against Wert's employer, Rubber Applications, for a
workplace injury suffered by Michael Camacho.1 They also appeal separate final
judgments awarding the Camachos attorneys' fees and costs. Wert and Rubber
Applications argue, among other things, that because Wert and Camacho were not
employees of the same employer, the trial court erred in ruling that the unrelated works
exception to workers' compensation immunity applies in this case to allow the
Camachos to recover from Wert and Rubber Applications. We agree and reverse the
final judgments. Because this issue is dispositive of this case, we do not reach the
other issues raised in this appeal.
This case involves a workplace accident between employees of two
subcontractors working on a comprehensive maintenance project at the Mosaic fertilizer
plant in Bartow, Florida. During the project, parts of the plant were shut down while
various subcontractors performed maintenance, repairs, and upgrades. Wert was a
superintendent for subcontractor Rubber Applications, and Camacho was employed by
subcontractor Mid-State Industrial Corporation. Mid-State had set up a staging area for
equipment and tools near a shack rented by Rubber Applications. On December 5,
2010, Wert left a safety meeting in Rubber Applications' shack, entered his truck, and
backed out from the side of the shack. As he put his truck in drive, he noticed Camacho
laying behind his truck.
In September 2012, Camacho and his wife filed an action against Wert for
negligence and against Rubber Applications for vicarious liability for Wert's negligence.
Wert and Rubber Applications asserted several affirmative defenses, including workers'
1
FCCI Commercial Insurance Co. also appeals the final judgments along
with Wert and Rubber Applications.
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compensation immunity. In reply to that affirmative defense, the Camachos alleged that
Camacho and Wert "were assigned primarily to unrelated works within private
employment" and that "[a]ny immunity asserted by the [d]efendants is subject to the
unrelated works exception contained within [section] 440.11(1)," Florida Statutes (2010).
The Camachos filed a motion for summary judgment on the issue of workers'
compensation immunity, and in response, Wert and Rubber Applications argued that
they were entitled to subcontractor statutory immunity under section 440.10(1)(e), which
they also referred to as horizontal immunity. Wert and Rubber Applications also moved
for summary judgment, asserting that Mosaic was the statutory employer of Rubber
Applications, that Mosaic was also the statutory employer of Mid-State, and that Rubber
Applications and Mosaic were dependent horizontal subcontractors of Mosaic working
on the same project. Wert and Rubber Applications alleged that section 440.10(1)(e)
therefore applied. The trial court denied the motions.
On the morning of trial, Wert and Rubber Applications renewed their
motion, arguing that the unrelated works exception requires two people to be employed
by the same employer and that it does not apply to this case because Wert and
Camacho were not employed by the same employer. Camacho responded that Mosaic
is the statutory employer of its subcontractors' employees. The trial court denied the
motion, and the trial commenced.
After Camacho presented his case and again at the close of all of the
evidence, Wert and Rubber Applications moved for a directed verdict, arguing that as a
question of law, the unrelated works exception did not apply to a claim of immunity
between two subcontractors in a horizontal relationship, as opposed to a vertical
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relationship. Wert and Rubber Applications argued that under section 440.10(1)(e),
they were immune from liability because Camacho did not prove that Wert was grossly
negligent. They further argued that even if the unrelated works exception applied, both
Wert's and Camacho's employers were engaged in related works. The Camachos
moved for a directed verdict on the basis that the subcontractors are considered
statutory coemployees of Mosaic for purposes of workers' compensation immunity
under section 440.10(1)(b), but that an exception to the immunity applies under section
440.11 because the subcontractors were engaged in unrelated works. The trial court
ruled that the evidence showed that Camacho and Wert were engaged in unrelated
works. The trial court found that they "were not working at the same location, they were
not working, cooperating as a team to accomplish any specific mission. They did not
have similar job duties. They did not have the same supervisor, and they were not
using any of the same equipment." The trial court denied Wert and Rubber
Applications' motion for directed verdict and granted the Camachos' motion. The trial
court accordingly instructed the jury that Wert and Camacho "were primarily engaged in
unrelated work on December the 5th, 2010, and, therefore, the defendants are not
entitled to workers' compensation immunity." The jury found that Wert was 90%
negligent and that Camacho's employer, Mid-State, was 10% negligent.
Wert and Rubber Applications filed a posttrial motion2 renewing their
motion for directed verdict and reasserting that the unrelated works exception did not
apply given the relationship between the parties. They also claimed that Wert and
2
The motion was titled "Defendant's Motion for Judgment Notwithstanding
the Verdict, Motion for Judgment in Accordance with Prior Motions for Directed Verdict
and/or Alternatively, Motion for New Trial and/or Remittitur."
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Camacho were engaged in related works. The trial court denied the motion and entered
final judgment against Wert, Rubber Applications, and FCCI Commercial Insurance Co.
and in favor of Camacho in the amount of $1,870,484.40 and in favor of Camacho's wife
in the amount of $432,043.20.
On appeal, Wert and Rubber Applications maintain the position they
asserted below that the unrelated works exception does not apply to the facts of this
case. They argue that the trial court erred in denying their motion for directed verdict.
The Workers' Compensation Law in chapter 440, Florida Statutes, is a
"comprehensive scheme . . . that generally provides workers' benefits without proof of
fault and employers immunity from tort actions based upon the same work place
incident." Aravena v. Miami-Dade County,
928 So. 2d 1163, 1167 (Fla. 2006) (quoting
Taylor v. Sch. Bd. of Brevard Cty.,
888 So. 2d 1, 2 (Fla. 2004)). An employer is liable
for compensating an employee who suffers an accidental injury or death arising out of
work performed in the course and scope of employment. See §§ 440.09, .10.
"[S]ection 440.11(1) provides that this liability is 'exclusive and in place of all other
liability' as to third-party tortfeasors and employees, save for certain legislatively created
exceptions," and "[t]he immunity afforded to the employer under section 440.11(1) also
extends to 'each employee of the employer when such employee is acting in
furtherance of the employer's business.' " Aravena,
928 So. 2d at 1167. "However, this
coemployee immunity does not apply . . . 'to employees of the same employer when
each is operating in the furtherance of the employer's business but they are assigned
primarily to unrelated works within private or public employment.' "
Id. (quoting §
440.11(1)). This exception is known as the unrelated works exception.
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In order to establish that Camacho and Wert were coemployees of the
same employer so that the unrelated works exception in section 440.11(1) would apply,
Camacho relied on section 440.10(1)(b), which addresses contractors and
subcontractors:
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.
Both sides proceed on the premise that Mosaic is a contractor under section 440.10, but
they disagree on whether subsection (1)(b) of section 440.10 applies to the relationship
between subcontractors Rubber Applications and Mid-State. Wert and Rubber
Applications claim that this statutory employer concept does not apply here because
Wert's employer, Rubber Applications, and Camacho's employer, Mid-State, did not
work under the same contract with Mosaic. Cf. Villalta v. Cornn Int'l, Inc.,
110 So. 3d
952, 953 (Fla. 1st DCA 2013) (holding that drywall finisher was statutory employee of
general contractor because "[t]he general contractor for the project subcontracted the
drywall work to [subcontractor], who further subcontracted the drywall finishing to
[another subcontractor]"); Lluch v. Am. Airlines, Inc.,
899 So. 2d 1146, 1147-48 (Fla. 3d
DCA 2005) (holding that airline was "statutory employer" of custodian because
custodian worked for janitorial services subcontractor, who had a contract with airline to
provide cleaning services at airport, and applying unrelated works exception because
contractor's employee was coemployee with subcontractor's employee). Wert claims
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that if the statutory employer concept in section 440.10(1)(b) were to apply to this
horizontal relationship between Rubber Applications and Mid-State, it would render
meaningless the immunity for horizontal subcontractor relationships provided in section
440.10(1)(e).
Section 440.10(1)(e) provides as follows:
A subcontractor providing services in conjunction with a
contractor on the same project or contract work is not liable
for the payment of compensation to the employees of
another subcontractor or the contractor on such contract
work and is protected by the exclusiveness-of-liability
provisions of s. 440.11 from any action at law or in admiralty
on account of injury to an employee of another
subcontractor, or of the contractor, provided that:
1. The subcontractor has secured workers' compensation
insurance for its employees or the contractor has secured
such insurance on behalf of the subcontractor and its
employees in accordance with paragraph (b); and
2. The subcontractor's own gross negligence was not the
major contributing cause of the injury.
The First District explained the difference between vertical and horizontal relationships:
[A] vertical relationship is created when a contractor sublets
part of the work to a subcontractor, who then further sublets
work to another subcontractor. . . . In contrast, a horizontal
relationship exists between subcontractors engaged on the
same construction project but under different subcontracts
outside the vertical chain of a contractor to subcontractor to
sub-subcontractor.
Villalta,
110 So. 3d at 953; see also Ramcharitar v. Derosins,
35 So. 3d 94, 96-97 (Fla.
3d DCA 2010) (explaining the statutory history of vertical and horizontal immunity).
Vertical relationships as set forth in section 440.10(1)(b) are subject to the liability in
section 440.10 and immunity in section 440.11, while horizontal relationships are
subject to the liability in section 440.10 and immunity in section 440.10(1)(e). See
Villalta,
110 So. 3d at 953; see also Amorin v. Gordon,
996 So. 2d 913, 915-18 (Fla. 4th
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DCA 2008) (explaining vertical relationships under section 440.10(1)(b) and horizontal
relationships under section 440.10(1)(e)).3
Based on the above-cited law, we agree that section 440.10(1)(b) does
not apply here to create an employment relationship of any kind between Rubber
Applications and Mid-State. While Rubber Applications and Mid-State were both
subcontractors of Mosaic and thus employees of Mosaic, they were not part of the same
"contract work" with Mosaic. No vertical relationship existed between Rubber
Applications and Mid-State, and therefore, section 440.10(1)(b) does not "deem[] [them]
to be employed in one and the same business or establishment." It then follows that
because they are not employees of the same employer, the unrelated works exception
in section 440.11 does not apply. Cf. Lluch,
899 So. 2d at 1147-48 (applying unrelated
works exception where contractor's employee injured subcontractor's employee).
Accordingly, the trial court erred in granting the Camachos' motion for
directed verdict and in instructing the jury that Wert and Rubber Applications were not
entitled to workers' compensation immunity based on the unrelated works exception.
See Marriott Int'l, Inc. v. Perez-Melendez,
855 So. 2d 624, 628 (Fla. 5th DCA 2003) ("[A]
motion for directed verdict should be granted only where no view of the evidence, or
inferences made therefrom, could support a verdict for the nonmoving party and the trial
court determines that no reasonable jury could render a verdict for that party.") (citations
3
"Section 440.10(1)(b) [requires contractors] to secure coverage for the
employees of subcontractors engaged on sublet contract work." VMS, Inc. v. Alfonso,
147 So. 3d 1071, 1073-74 (Fla. 3d DCA 2014). When such coverage has been
secured, the contractor is immune from suit.
Id. at 1073. And section 440.10 requires
subcontractors to secure coverage for their employees. But there is no comparable
requirement that a subcontractor secure coverage for the employees of a fellow
subcontractor.
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omitted). We reverse and remand for a new trial at which Wert and Rubber Applications
may assert horizontal immunity under section 440.10(1)(e). We express no opinion on
whether Wert and Rubber Applications are entitled to immunity under that standard.
We also reverse the final judgments on costs and attorneys' fees.
Reversed and remanded.
WALLACE and CRENSHAW, JJ., Concur.
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