801 So.2d 101 (Fla. 2001), SC99-153, Florida Dept. of Transp. v. Juliano

Docket Nº:SC99-153
Citation:801 So.2d 101, 26 Fla. L. Weekly S 784
Opinion Judge:The opinion of the court was delivered by: Pariente, J.
Attorney:Dirk M. Smits and H. Joseph Calmbach of Vernis & Bowling of the Florida
Case Date:November 21, 2001
Court:Supreme Court of Florida

Page 101

801 So.2d 101 (Fla. 2001)

26 Fla. L. Weekly S 784




No. SC99-153

Supreme Court of Florida.

November 21, 2001

Application for Review of the Decision of the District Court of Appeal - Direct Conflict Third District - Case No. 3D98-267 (Monroe County)

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[Copyrighted Material Omitted]

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Dirk M. Smits and H. Joseph Calmbach of Vernis & Bowling of the Florida Keys, P.A., Islamorada, Florida, for Petitioner

L. Barry Keyfetz of Keyfetz, Asnis & Srebnick, P.A., Miami, Florida, for Respondent

Joseph H. Williams of Troutman, Williams, Irvin, Green & Helms, P.A., Winter Park, Florida, for The Academy of Florida Trial Lawyers, Amicus Curiae


We have for review Florida Department of Transportation v. Juliano, 744 So.2d 477 (Fla. 3d DCA 1999) ("Juliano II"), a decision from the Third District Court of Appeal that misapplies this Court's holding in United States Concrete Pipe v. Bould, 437 So.2d 1061, 1063 (Fla. 1983). Based on the conflict created by this misapplication, we have jurisdiction under article V, section 3(b)(3), of the Florida Constitution. See Vest v. Travelers Ins. Co., 753 So.2d 1270, 1272 (Fla. 2000); Pender v. State, 700 So.2d 664, 665 (Fla. 1997).


The underlying facts are recited in the Third District's opinion:

Angelo Juliano, a former correctional officer, employed by the Florida Department of Corrections ("DOC"),[note 1] was injured when he tripped on a large bump in the floor of a mobile weigh station operated by the DOT [Florida Department of Transportation]. At the time of Juliano's accident, the DOT had a contract with the DOC for the use of its inmates to clean the DOT's weigh station under the supervision of the DOC correctional officers. Juliano was supervising the inmates at the weigh station when he tripped and injured himself.

[Note 1: As a result of his injuries, Juliano was terminated as a correctional officer.]

Juliano II, 744 So.2d at 478.

Juliano received workers' compensation benefits from DOC for his injuries and subsequently filed a third-party tort action for personal injuries against DOT for negligence in maintaining the weigh station. DOT moved for summary judgment on the grounds that it was entitled to workers' compensation immunity because the "unrelated works" exception under section 440.11(1), Florida Statutes (1997), 1 did not apply. DOT contended that the exception did not apply because Juliano failed to name any specific employee of DOT whom Juliano alleged to be negligent. In addition, DOT argued that Juliano had neither alleged nor shown any specific actions on the part of DOT's employees that were negligent. In response, Juliano argued that it was unnecessary to name a particular employee for the "unrelated works" exception to apply. Moreover, in Juliano's written response to DOT's summary judgment motion, he identified two specific DOT supervisors who Juliano alleged had been negligent: a safety specialist named Mary Lou and Sergeant Wyse. Juliano also argued that DOT was not entitled to summary judgment because a disputed genuine issue of material fact existed as to whether Sergeant Wyse was negligent. The trial court denied the motion for summary judgment, concluding that disputed genuine issues of material fact existed and

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that the jury was entitled to decide whether there was negligence on the part of the DOT employees.

DOT filed an interlocutory appeal of this order 2 and it framed the issue on appeal as whether a "claimant who has accepted workers' compensation benefits and has also brought suit in personal injury against his employer must identify the fellow employee accused of negligence." Juliano asserted that under this Court's opinion in Holmes County School Board v. Duffell, 651 So.2d 1176 (Fla. 1995), he was not required to identify the negligent fellow employee. 3 Moreover, Juliano contended that because he named Mary Lou and Sergeant Wyse as the negligent coworkers, DOT's appeal was moot. The Third District affirmed per curiam with a citation to Holmes. See Florida Dep't. of Transp. v. Juliano, 664 So.2d 77, 77 (Fla. 3d DCA 1995) ("Juliano I").

On remand, DOT filed a second motion for summary judgment. This time, DOT argued that an employee could not sue a supervisor under the "unrelated works" exception unless the employee could demonstrate that the supervisor engaged in conduct that amounted to culpable negligence. The trial court denied DOT's second summary judgment motion as "a mere relitigation of the first motion for summary judgment." Juliano II, 744 So.2d at 478. The case proceeded to trial with a verdict being entered in Juliano's favor. See id.

DOT appealed the final judgment. Among the issues raised on appeal, DOT argued that the trial court erred in denying its second motion for summary judgment. See id. In rejecting this argument, the Third District concluded that

the doctrine of res judicata precluded the DOT from raising or reraising any aspect of its workers' compensation defense on remand after the first appeal of this cause. See Thomas v. Perkins, 723 So.2d 293, 294 (Fla. 3d DCA 1998) (under the doctrine of res judicata, appellant is precluded from raising any issues

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which were or should have been raised on first appeal).

Id. This appeal follows.


In this case, we must determine whether the Third District properly applied the doctrine of res judicata to preclude DOT from raising a distinct aspect of its defense that it did not raise in the first non-final appeal. In analyzing this issue, it is incumbent upon this Court to first review the important differences regarding the doctrine of res judicata and the related doctrine of the law of the case.

This Court has explained that under the doctrine of res judicata:

A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety...

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