Quality Shell Homes & Supply Company v. Roley, F-471.

• Decision Date: 26 May 1966
• Docket Number: No. F-471.,F-471.
• Citation: 186 So.2d 837
• Parties: QUALITY SHELL HOMES & SUPPLY COMPANY, Inc., et al., Appellants, v. James ROLEY, Appellee.
• Court: Florida District Court of Appeals

186 So.2d 837

QUALITY SHELL HOMES & SUPPLY COMPANY, Inc., et al., Appellants, v. James ROLEY, Appellee.

No. F-471.

District Court of Appeal of Florida. First District.

May 26, 1966.

Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellants.

Fisher & Hepner, Pensacola, for appellee.

CARROLL, DONALD R., Judge.

The defendants in an action for damages have appealed from a final judgment entered by the Circuit Court for Escambia County, based upon a jury verdict for the plaintiff.

The principal question for our determination in this appeal is whether, in this action against his alleged employers for personal injuries suffered by the plaintiff while working on the job, the said employers, under the circumstances of this case, were estopped from raising the exclusiveness-of-liability provisions of the Florida Workmen's Compensation Law.

In their appellate brief the appellants phrase this question more restrictedly, as follows: "Does refusal to pay voluntarily workmen's compensation benefits estop a statutory employer from raising the exclusiveness of liability provisions of Section 440.11, Florida Statutes?" The appellee in his brief, however, correctly points out that, as we shall discuss later, many other circumstances are shown in the record that establish the fact of such estoppel, in addition to "refusal to pay voluntarily workmen's compensation benefits. * * *" In fact, the appellee concedes in his brief that such refusal alone "will not estop the employer from requiring the claimant to seek his remedy in conformance with the Workmen's Compensation Law."

The facts pertinent to this issue of estoppel, including those circumstances relied upon by the appellee to show estoppel, are briefly as follows:

The defendant Quality Shell Homes of Alabama, Inc., is the wholly-owned subsidiary of its parent corporation, the defendant Quality Shell Homes and Supply Co., Inc.

One of the defendants (there were conflicting inferences in the record as to which one) entered into a contract with a Mrs. Poulsen to erect a shell home on her property in Escambia County. The defendant Quality Homes, Inc., then entered into an agreement with one Moring that, using materials supplied to him, Moring would furnish the labor necessary to build the house. This agreement contained a provision that, at the option of Moring, the company would furnish workmen's compensation insurance and deduct the cost of it from the contract price.

On the day of his injury the plaintiff, who was one of three men who were hired by Moring to build the house on Mrs. Poulsen's property, was working on the roof when one or more boards forming a portion of the roof decking pulled through the nails holding them to the roof truss, thereby causing the plaintiff to fall to the ground and thus sustain serious injuries. The said roof decking pulled through the nails at the said time because the decking was rotten and decayed, which condition was known to all four men working on the job.

After the plaintiff was thus injured, Moring had a conversation with the said company's state manager about the payment of the plaintiff's medical bills, and the manager told Moring that workmen's compensation insurance was available initially, but a week or two later said that it was not. The manager also wrote to Moring a letter reading:

"We cannot make payment as Mr. Roley was not working for Quality Homes.

"He was working for a contractor that was building a Quality Home, and therefore the contractor is responsible for payment as all contractors are suppose to have insurance on all men who work for them."

Pursuant to the above-mentioned provision of his agreement with the said defendant concerning workmen's compensation insurance, Moring had requested that defendant's state manager supply such insurance coverage, and the manager stated that the company would do so. Moring did not himself procure such insurance because, he testified, he relied upon the said manager's said assurance that such insurance would be obtained.

More than two months before the filing of the present action, the plaintiff's attorney wrote a letter to both defendants notifying them in detail of the nature and extent of the plaintiff's claim, but neither defendant had replied to the letter by the time the action was filed.

Both defendants were in fact insured for the payment of compensation under the provisions of the Florida Workmen's Compensation Law by an insurance company authorized to do such business in this state In view of the above-described circumstances, the plaintiff did not file a claim with the Florida Industrial Commission on account of his said injuries, but elected to file this negligence action for damages against the two defendants.

In his complaint the plaintiff alleged that his fall described above occurred as a result of the defendants' negligence in furnishing the rotten and defective materials for use in the construction on Mrs. Poulsen's property.

The defendants' position as stated in their defenses and on this appeal that this action against them is barred because they had secured the payment of workmen's compensation benefits as required by law, is based upon the provisions of Section 440.11, Florida Statutes, F.S.A., which are as follows:

"The liability of an employer prescribed in § 440.10 shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such

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