Slora v. Sun 'n Fun Fly-In, Inc.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ALICE SLORA, )
)
Appellant, )
)
v. ) Case No. 2D14-2745
)
SUN 'N FUN FLY-IN, INC., )
)
Appellee. )
___________________________________)
Opinion filed August 26, 2015.
Appeal from the Circuit Court for
Polk County; Mark H. Hofstad, Judge.
Jeffrey E. Appel, Lakeland, for Appellant.
Katherine E. Giddings and Kristen M. Fiore
of Akerman LLP, Tallahassee, and Mitchel
E. Kallet of Kern Wooley PC, Palm Beach
Gardens, for Appellee.
SALARIO, Judge.
Alice Slora appeals from a final summary judgment in favor of Sun 'n Fun
Fly-In, Inc., the defendant in Ms. Slora's negligence action. Ms. Slora was employed by
U.S. Security Associates, Inc., which provided event security at an air show operated by
Sun 'n Fun and during which Ms. Slora was injured. The circuit court held as a matter of
law that Sun 'n Fun was a statutory employer immune from liability under Florida's
Workers' Compensation Law because it was a "contractor" that sublet "contract work" to
U.S. Security, which, in turn, provided workers' compensation benefits to Ms. Slora.
See §§ 440.10(1)(b), .11(1), Fla. Stat. (2010). According to the circuit court, Sun 'n Fun
was a "contractor" because the undisputed facts established a contractual relationship
between Sun 'n Fun and the Federal Aviation Administration documented in certain
certificates of waiver issued to Sun 'n Fun by the FAA, which authorized Sun 'n Fun to
operate the air show subject to numerous conditions, including the condition that
security be provided.
This conclusion rested on the determination, as a matter of law, that the
certificates of waiver were contracts. We conclude that they were not contracts but
rather were regulatory permits or licenses. For that reason, the undisputed facts do not
support the legal conclusion that Sun 'n Fun was a contractor for the purposes of
chapter 440. We reverse the final summary judgment and remand for further
proceedings.
I.
A.
Sun 'n Fun operates air shows for the enjoyment of the general public.
That subjects Sun 'n Fun's operations to the regulatory jurisdiction of the FAA. Title 49
of the United States Code delegates to the FAA the authority to prescribe and enforce
regulations related to air safety. The FAA also has discretion to waive compliance with
certain of those regulations upon an application for a certificate of waiver and subject to
such conditions as it deems appropriate. The failure to comply with FAA safety
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regulations or, if applicable, conditions imposed by a certificate of waiver is prohibited
by federal law.
Sun 'n Fun planned to operate an air show at and around the Lakeland
Linder Regional Airport on March 29 through April 3, 2011. Sun 'n Fun submitted
applications to the FAA for certificates of waiver of certain regulations that would
otherwise prohibit or restrict planned activities scheduled to occur at the show. For
example, Sun 'n Fun sought waiver of regulations relating to the minimum altitudes at
which flight is permitted, allowing flight over a congested area, and allowing aerobatic
flight in certain airspace, in certain locations, and at certain altitudes.
The applications were on standard forms provided by the FAA for the
purpose of requesting certificates of waiver. The forms were two pages long and called
for basic information about the event and the waivers Sun 'n Fun was requesting. That
information included the proposed operations, the area in which those operations would
occur, the regulations as to which each waiver was sought, the emergency facilities
available at the event location, and the provisions made for policing the event.
The FAA granted Sun 'n Fun the requested certificates of waiver. The
certificates specified the operations the FAA was allowing Sun 'n Fun to undertake and
the regulations it was waiving in that regard. In addition, the certificates contained a
long list of "standard provisions" and "special provisions" with which the FAA required
that Sun 'n Fun comply. These governed a range of matters related to the airshow,
including the speed at which aircraft could fly, the briefing of air show participants, and
the maintenance of communications capabilities. Stressing that the provisions were
requirements of the FAA, each certificate stated that "[n]o person shall conduct any
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operation pursuant to the authority of this certificate except in accordance with the
standard and special provisions . . . and such other requirements of the Federal Aviation
Regulations not specifically waived by this certificate." Each certificate also stated that
"[f]ailure to comply with any standard or special provision is a violation of the terms of
this Certificate . . . and justification for cancellation of this Certificate and constitutes a
violation of Title 49 of the United States Code (49 U.S.C.) section 44711(a)(5)."
Certain of the certificates contained provisions related to security and
policing, including requirements for "safeguarding persons and property on the surface"
and ensuring that "adequate policing shall be provided to confine spectators to
designated areas." To comply, Sun 'n Fun contracted with U.S. Security to provide
security at the air show. Ms. Slora was a guard employed by U.S. Security and
assigned by it to work the Sun 'n Fun air show.
On March 31, 2011, while the air show was ongoing, a severe storm
struck in Polk County. Ms. Slora was working inside a security guard shack at the
airport. A tornado struck, lifted the shack off the ground, overturned it, and deposited it
into a nearby ditch. Ms. Slora, who was still inside, was injured. To compensate for her
injuries, Ms. Slora made a claim for workers' compensation benefits provided by U.S.
Security, which claim was settled.
B.
On August 27, 2013, Ms. Slora filed a complaint against Sun 'n Fun in the
circuit court. She alleged that bad weather and tornadoes in Polk County were
foreseeable to Sun 'n Fun, which failed to maintain the guard shack in a reasonably safe
condition and to warn invitees of the risks of injury from foul weather. She asserted a
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single claim for negligence seeking damages and other relief. Sun 'n Fun filed an
answer, which included an affirmative defense that Sun 'n Fun was immune from liability
in tort under Florida's Workers' Compensation Law.
On November 20, 2013, Sun 'n Fun filed a motion for summary judgment
based on its affirmative defense of workers' compensation immunity. It argued that Ms.
Slora's claim to the workers' compensation benefits provided by U.S. Security were the
exclusive remedy for her injuries because, although Sun 'n Fun was not Ms. Slora's
direct employer, section 440.10(1)(b) extends immunity to a "contractor [that] sublets
any part or parts of [its] contract work to a subcontractor or subcontractors." Sun 'n
Fun's theory was that, under the undisputed facts, section 440.10(1)(b) entitled it to
immunity because the certificates of waiver issued by the FAA constituted a contract
that imposed an obligation to provide security at the air show, which it subcontracted to
U.S. Security. Ms. Slora responded, raising no dispute of fact but arguing that the
certificates of waiver were not contracts and thus could not serve as the basis for
concluding Sun 'n Fun was a contractor. The circuit court found that a contractual
relationship existed between the FAA and Sun 'n Fun and granted summary judgment in
favor of Sun 'n Fun because there were no material facts in dispute and the contractual
relationship entitled Sun 'n Fun to immunity as a matter of law. Final judgment was
entered, and this appeal timely followed.
II.
We review the circuit court's grant of summary judgment de novo. Green
v. APAC-Fla., Inc., 935 So. 2d 1231, 1233 (Fla. 2d DCA 2006). The question before us
is whether the record establishes to the exclusion of any genuine issue of material fact
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that Sun 'n Fun's relationship with the FAA rendered it a "contractor" immune from
liability under Florida's Workers' Compensation Law.1 See Derogatis v. Fawcett Mem'l
Hosp., 892 So. 2d 1079, 1083-84 (Fla. 2d DCA 2004) (reversing summary judgment in
favor of a defendant claiming workers' compensation immunity where no facts were
present on the record to show that a contract existed). Because Sun 'n Fun's argument
that it was a "contractor" hinged on its assertion that the certificates of waiver issued to
it by the FAA were contracts, Sun 'n Fun had to show that there was no factual or legal
dispute that such contracts existed in order to be entitled to summary judgment. See
Westchester Fire Ins. Co. v. In-Sink-Erator, 252 So. 2d 856, 858 (Fla. 4th DCA 1971)
(explaining that "where a determination of liability depends on a written instrument of the
parties thereto and the legal effect to be drawn therefrom, the question at issue is one of
law only, and ordinarily is determinable by summary judgment," unless the terms of the
instrument are ambiguous).
Under section 440.10, every employer is legally obligated to secure the
payment of medical and disability benefits for any employee who is injured at work.
§ 440.10(1)(a). In exchange, the employer's liability for those benefits is made
"exclusive and in place of all other liability . . . of such employer . . . to the employee." §
440.11(1). As a result, "employers who provide workers' compensation benefits . . . are
1The typical workers' compensation issue in this context is not whether a
contractor/subcontractor relationship exists. Instead, the question is usually whether an
injured worker was a statutory employee rather than a true independent contractor,
thereby rendering the defendant a statutory employer. See § 440.02(15)(d)(1), Fla.
Stat. (2010). This was not the issue before the trial court in this case.
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immune from tort liability."2 Cent. Fla. Lumber Unlimited, Inc. v. Qaqish, 12 So. 3d 766,
769 (Fla. 2d DCA 2009).
The obligation to secure payment of workers' compensation benefits and
concomitant immunity from tort liability extends not only to direct employers but also to
certain "statutory employers." Id. In that connection, section 440.10(1)(b) provides:
In case a contractor sublets any part or parts of his or her
contract work to a subcontractor . . . , all of the employees of
such contractor and subcontractor . . . 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.
The purpose of this provision is to "insure [sic] that a particular industry will be
financially responsible for injuries to those employees working in it, even though the
prime contractor employs an independent contractor to perform" some or all of the work.
Gator Freightways, Inc. v. Roberts, 550 So. 2d 1117, 1119 (Fla. 1989) (quoting Roberts
v. Gator Freightways, Inc., 538 So. 2d 55, 60 (Fla. 1st DCA 1989)).
The statutory terms "contractor" and "contract work" plainly and
unambiguously posit a party performing work pursuant to a contract with another. Thus,
to be immune from tort liability as a contractor, a defendant's "primary obligation in
performing a job or providing a service must arise out of a contract." Derogatis, 892 So.
2d at 1083 (quoting Sotomayor v. Huntington Broward Assocs., L.P., 697 So. 2d 1006,
2The legislature's objective was "to assure the quick and efficient delivery
of disability and medical benefits to an injured worker and to facilitate the worker’s
return to gainful reemployment at a reasonable cost to the employer." § 440.015. It
determined that "a mutual renunciation of common-law rights and defenses by
employers and employees" served that objective. Id.
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1007 (Fla. 4th DCA 1997)). To be entitled to this immunity, Sun 'n Fun had to show that
it "incurred a contractual obligation to a third party," the FAA, a part of which obligation
Sun 'n Fun then "delegated or sublet to a subcontractor," U.S. Security, whose
employee, Ms. Slora, was injured during the course of executing that obligation. See id.
(quoting Antinarelli v. Ocean Suite Hotel, 642 So. 2d 661, 662 (Fla. 1st DCA 1994)); see
also Qaqish, 12 So. 3d at 769. Sun 'n Fun argued its contractual obligation arose from
the certificates of waiver granted by the FAA. The summary judgment evidence it
submitted in support of that claim was the applications for the certificates of waiver and
the certificates of waiver themselves.
The problem for Sun 'n Fun is that the certificates of waiver look far more
like regulatory permits or licenses than contracts. Permits and licenses are issued by
government agencies to allow the permit or license holder to engage in activity that
would otherwise be prohibited or restricted by law or regulation. See generally Outdoor
Media of Pensacola, Inc. v. Santa Rosa Cty., 554 So. 2d. 613, 615 (Fla. 1st DCA 1989)
(defining a license issued by a governmental entity as different from a contract entered
with such entity). Contracts, in contrast, are bargained-for agreements created through
a manifestation of mutual assent, typically through offer and acceptance, supported by
the exchange of consideration. See generally Restatement (Second) of Contracts §§ 1,
17, 22 (Am. Law Inst. 1981).
The two relationships are distinct. A permit or license facilitates the
government's regulation of an activity in the public interest, while a contract facilitates an
exchange of promises between two or more parties for some mutually beneficial
purpose. A license or permit does not have the elements of a contract. A license or
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permit is generally enforced through regulatory or criminal action; a contract is generally
enforced through a suit for damages or specific performance. In view of these and
other differences, courts routinely hold that a license or permit is merely the grant by the
government of a privilege to the holder of the license or permit and does not constitute a
contract. Outdoor Media, 554 So. 2d at 615 ("A license is not a contract between the
state and the licensee, but is a mere personal permit." (quoting Black's Law Dictionary
829 (5th ed. 1979)); see also Lichterman v. Pickwick Pines Marina, Inc., No.
1:07CV256-SA-JAD, 2010 WL 1709980, at *2 (N.D. Miss. Apr. 23, 2010) (holding that
permit issued pursuant to Section 26a of the Tennessee Valley Authority Act was not a
contract); WMS Gaming, Inc. v. Sullivan, 6 A.3d 1104, 1111 (R.I. 2010) ("Therefore, '[a]
license . . . is a mere privilege or permission and in no sense a contract or property.' "
(alteration in original) (quoting Thayer Amusement Corp. v. Moulton, 7 A.2d 682, 686
(R.I. 1939))); Patzer v. City of Loveland, 80 P.3d 908, 912 (Colo. App. 2003) ("[A] typical
building permit, such as the one here, does not create a contractual obligation between
the city and the permittee."); Bourgeous v. Utah Dep't of Commerce, 41 P.3d 461, 465
(Utah Ct. App. 2002) ("It is axiomatic that a license does not create any vested rights in
its holder because a license is not a contract."); US Ecology, Inc. v. State, 111 Cal. Rptr.
2d 689, 702 (Cal. Ct. App. 2001) ("A license merely permits an entity to pursue a
regulated activity, and 'has none of the elements of a contract.' " (quoting Rosenblatt v.
Cal. State Bd. of Pharmacy, 158 P.2d 199 (Cal. Ct. App. 1945))); Concerned Citizens of
Kimball Cty., Inc. v. Dep't of Envtl. Control, 505 N.W.2d 654, 659 (Neb. 1993) ("A
license is not a contract or obligation between the authority, federal, state, or municipal,
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granting it and the person to whom it is granted." (quoting 53 C.J.S. Licenses § 3 at 322
(1987))).
Here, the undisputed facts available at the summary judgment hearing
show that the certificates of waiver issued by the FAA were in the nature of licenses or
permits. The FAA exercises the authority of the federal government for purposes of
regulating air traffic and ensuring air safety. Sun 'n Fun wanted to conduct air show
activities that would have been illegal and would have subjected it to sanction unless
the FAA waived certain regulations. It requested that waiver by submitting short
applications providing basic information about what it intended to do. The FAA
responded by issuing Sun 'n Fun written certificates specifying the limited regulations
with which it would deem compliance excused, thereby saving Sun 'n Fun from violating
federal law, and identifying numerous conditions with which Sun 'n Fun was required to
comply to engage in the regulated activity. This summary judgment evidence thus
shows that the FAA certificates of waiver were licenses or permits in the classic sense
of those terms—namely, dispensations from a government body to conduct activities
that would be prohibited in the absence of such dispensation.3 See, e.g., Outdoor
Media, 554 So. 2d at 615 (defining license as "[a] permit, granted by an appropriate
3This conclusion finds additional support in the principle that the mere fact
that a party is under a purely legal obligation arising outside of a contract—such as one
imposed by a statute or the common law—does not render one a "contractor" entitled to
immunity. See, e.g., Smith v. Mariner's Bay Condo. Ass'n, 789 So. 2d 1228, 1230 (Fla.
3d DCA 2001) (holding that an obligation imposed by statute "cannot form the basis for
a statutory employer relationship"); Sotomayor, 697 So. 2d at 1008 (A "common law
duty alone would not be sufficient to grant workers' compensation immunity to
defendant."). The duties imposed by the certificates of waiver in this case are duties
imposed by law, i.e., regulatory mandate, rather than any form of contractual duty
arising from a bargained-for exchange.
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governmental body, generally for a consideration, to a person, firm, or corporation to
pursue some occupation or to carry on some business subject to regulation under the
police power" (alteration in the original) (quoting Black's Law Dictionary 829 (5th ed.
1979))).
Nor did Sun 'n Fun present any summary judgment evidence to show that
the certificates of waiver were something other than what their unambiguous terms
demonstrate. Sun 'n Fun described them as contracts to provide an air show or as
contracts to conduct its air show in accord with the condition that security be provided.
Yet the record is devoid of any undisputed facts to suggest that this is so.4
By way of example, the applications submitted by Sun 'n Fun to the FAA
are on their faces requests that the FAA refrain from the enforcement of certain
regulations so that Sun 'n Fun could legally pursue activities for its own benefit. Such
requests are not offers on definite terms to enter into a bargain with the FAA. See Lee
Cty. v. Pierpont, 693 So. 2d 994, 996 (Fla. 2d DCA 1997) (noting that an offer is "[a]
manifestation of willingness to enter into a bargain, so made as to justify another person
in understanding that his assent to that bargain is invited and will conclude it").
Similarly, the certificates of waiver, which contain numerous conditions discussed
nowhere in the applications and as to which the record contains no evidence of
agreement by Sun 'n Fun, mandate that Sun 'n Fun comply or forebear from operating
an air show on pain of federal sanction. This is a regulatory mandate, and Sun 'n Fun
failed to show any of the waivers represented an acceptance or a mutual agreement
4In its order granting summary judgment, the circuit court characterized
the certificates of waiver as contracts, but it did not explain what evidence, if any,
supported that assertion.
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between the FAA and Sun 'n Fun on terms of exchange. See Giovo v. McDonald, 791
So. 2d 38, 40 (Fla. 2d DCA 2001) (explaining that "an acceptance is effective to create
a contract only if it is absolute and unconditional, and identical with the terms of the
offer" and that a contract is formed only where there is "mutual or reciprocal assent to
certain definite propositions"). Nor did Sun 'n Fun present any evidence concerning the
exchange of consideration inasmuch as Sun 'n Fun provided no evidence to suggest
either (1) that as to the contract-to-provide-air-show theory, the FAA had any interest
whatsoever in whether Sun 'n Fun conducted an air show or (2) that as to the contract-
to-provide-security theory, the FAA lacked the power to impose this condition regardless
of whether Sun 'n Fun promised to do it. See Wolowitz v. Thoroughbred Motors, Inc.,
765 So. 2d 920, 924 (Fla. 2d DCA 2000) (reversing summary judgment in the face of
genuine disputes of whether party received value in exchange for promise and holding
that "[a]n agreement to perform a preexisting obligation does not constitute
consideration"). In sum, then, the undisputed facts show that the certificates of waiver
were permits or licenses, and Sun 'n Fun failed to meet its burden to show that they
instead represented a contractual bargain. See Derogatis, 892 So. 2d at 1084;
Westchester Fire Ins., 252 So. 2d at 858.
Sun 'n Fun also asserts that treating it as a contractor comports with the
legislative intent behind Florida's Workers' Compensation Law. It is not clear to us on
this record that this is true, but broad appeals to legislative intent are not relevant to our
review in this case. The plain and unambiguous meaning of the statutory terms
"contractor" and "contract work" require that Sun 'n Fun be performing work pursuant to
a contract with a third party, and that is where our analysis of the statute ends. See
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Gallagher v. Manatee Cty., 927 So. 2d 914, 918-19 (Fla. 2d DCA 2006) ("When a
statute is clear, courts will not look behind the statute's plain language for legislative
intent . . . ." (quoting State v. Burris, 875 So. 2d 408, 410 (Fla. 2004))).
Alternatively, Sun 'n Fun argues that it is entitled to immunity based on its
implied contractual obligation to visitors to the air show to provide security. Florida
courts have recognized that, at least in some circumstances, a party may be a
"contractor" where it undertakes an implied contractual obligation to a third person.
See, e.g., Rabon v. Inn of Lake City, Inc., 693 So. 2d 1126, 1130-33 (Fla. 1st DCA
1997); Delta Air Lines, Inc. v. Cunningham, 658 So. 2d 556, 557 (Fla. 3d DCA 1995). In
this case, however, Sun 'n Fun presented no summary judgment evidence from which
such a contractual obligation could be inferred. On the contrary, the evidence provided
to the circuit court was exclusively directed to Sun 'n Fun's relationship with the FAA.
As the party moving for summary judgment, Sun 'n Fun had the burden to present facts
and argument to support this claim. See generally Wal-Mart Stores, Inc. v. Boertlein,
775 So. 2d 345, 346 (Fla. 2d DCA 2000). Accordingly, Sun 'n Fun's implied contract
argument provides no basis to otherwise sustain the summary judgment here.
III.
The record in this case establishes that Sun 'n Fun's relationship with the
FAA was one of regulatory grace, not bargained-for exchange. Sun 'n Fun thus failed to
meet its burden to establish that a contract existed as a matter of law between Sun 'n
Fun and the FAA. Accordingly, the circuit court erred in granting summary judgment to
Sun 'n Fun on the theory that it was immune from tort liability as a "contractor" under
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Florida's Workers' Compensation Law. The judgment therefore is reversed, and the
case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
ALTENBERND and SLEET, JJ., Concur.
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