Abernathy v. Employers Ins. of Wausau, 82-331

CourtCourt of Appeal of Florida (US)
Citation428 So.2d 272
Docket NumberNo. 82-331,82-331
PartiesStacey R. ABERNATHY, Appellant, v. EMPLOYERS INSURANCE OF WAUSAU, Metropolitan Drywall Systems, Inc., Aetna Casualty and Surety Company and Allied Crane Service, Inc., Appellees.
Decision Date10 December 1982

Bruce D. Frankel and John B. Cechman of Goldberg, Rubinstein & Buckley, P.A., Fort Myers, for appellant.

Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees Employers Ins. of Wausau and Metropolitan Drywall Systems, Inc.

Jana V. Jay of Napier & Donovan, Naples, for appellees, Aetna Cas. and Surety Co. and Allied Crane Service, Inc.


In this case, we consider the question of whether an employee of a general contractor may sue a subcontractor in tort for the negligence of the subcontractor's employee. Stacey Abernathy worked for Deltona Corporation. That company was, at least nominally, the general contractor on a condominium construction project being developed by its wholly owned subsidiary, Marco Island Beach Front, Inc. Deltona contracted with Metropolitan Drywall and with Allied Crane for certain work in connection with the construction project.

On August 13, 1980, while Abernathy was unloading sand, a rolling rack used to transport drywall fell from a crane and injured him. An employee of Allied Crane was operating the crane at the time of the accident and an employee of Metropolitan Drywall had secured the load of drywall being lifted by the crane. Abernathy received workman's compensation benefits from his employer, Deltona, and its insurer. He thereafter sued the subcontractors and their individual insurors in tort. The defendants filed motions for summary judgment, raising sections 440.10 and 440.11, Florida Statutes (1979), as providing immunity from any tort action against them by an employee of a general contractor. The trial court granted summary judgment and Abernathy appealed. We reverse.

On appeal, the primary question presented to us by the parties for our consideration was whether the trial court erred in deciding on a motion for summary judgment that the Deltona Corporation was a general contractor as statutorily defined in chapter 440, and that the immunity from tort actions provided therein flowed down to the subcontractor. After reviewing the record and hearing arguments of counsel, it is apparent that there are factual issues in this case as to whether Deltona was a "statutory" general contractor that should have precluded summary judgment even if that issue were the only issue determinative of any immunity of the appellees. Summary judgment should only be granted when there is no material issue of fact in dispute and the moving party is entitled to judgment as a matter of law. Perez v. Milton, 322 So.2d 562 (Fla. 3d DCA 1975). More importantly for our purposes, however, is the basic question of whether a subcontractor is immune from tort actions by an employee of the general contractor.

Section 440.10(1), Florida Statutes (1979), 1 requires all contractors falling within the provisions of chapter 440 to arrange for compensation for their employees in the manner provided by that chapter. In addition, when these contractors sublet work, they must also secure compensation for the subcontractor's employees unless the subcontractor has already so provided. This makes the contractor who sublets work the statutory employer of all employees of its subcontractors working on a particular project. Section 440.11(1) 2 makes this liability to secure compensation the exclusive form of liability of the employer. Therefore, so long as security for compensation is maintained for all their statutory employees, the contractors obligated to secure such compensation are immune from suit.

In Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690 (1940), our supreme court construed the relevant portions of the then existing workman's compensation act 3 as also creating reciprocal immunity in favor of the subcontractor who is sued by an employee of a general contractor. The court reasoned that the subcontractor enjoyed this immunity because all the employees were working on the same project and should, therefore, be on an equal footing in the nature of fellow servants. Later, in Miami Roofing & Sheet Metal Co. v. Kindt, 48 So.2d 840 (Fla.1950), the court extended this common employment doctrine and prevented a tort action by one subcontractor's employee against another subcontractor.

In Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954), the court departed from a strict application of the common employment doctrine and stated: "It is the liability to secure compensation which gives the employer immunity from suit as a third party tort-feasor. His immunity from suit is commensurate with his liability for securing compensation ...." 72 So.2d at 287. See also Frantz v. McBee Company, 77 So.2d 796 (Fla.1955). Despite this apparent departure from Younger and Miami Roofing, the court sustained those decisions in Carter v. Sims Crane Service, Inc., 198 So.2d 25 (Fla.1967). In Carter the court held that the immunity from tort action protects a contractor from action by an employee of any contractor or subcontractor on the project so long as the contractor being sued has complied with the liability to secure compensation. The immunity in that situation was held to exist even though the contractor being sued had no obligation to secure compensation for the employee bringing the tort action. The court stated that:

Immunity of a subcontractor in this situation is in fact based upon his sharing the burdens of the act, either directly by the assumption of coverage for some of the employees on the job or indirectly because of the effect of compensation liabilities upon the terms of his subcontract and relations with the general contractor.

198 So.2d at 27-28. Therefore, the concept emerged that so long as an employer met the requirement of chapter 440 to provide compensation for its employees, it thereby became the "statutory" employer of all employees involved in the project regardless of who employed them, and the immunity from tort liability flowed "vertically" and "horizontally" to all employers on the project who complied with the statute.

This approach, as well as the Younger common employment doctrine, has been severely criticized:

There are a host of things wrong with this [Carter ] approach, ... [T]he concept of "liability" is a two-sided one, not an open-ended one. It connotes liability by someone and also to someone. The ... principle making immunity follow liability obviously means that if A has a liability to B he also has an immunity as to B, not that if A has a liability as to X (but not as to B) he has an immunity as to B. (Footnote omitted.)

Larson, Workman's Compensation Law, Vol. 2 A, § 72.33 (1981).

In 1974, the Florida legislature amended section 440.10, obviously eliminating the "horizontal" liability by adding the following language A subcontractor is not liable for the payment of compensation to the employees of another subcontractor on such contract work and is not protected by the exclusiveness of liability provisions of § 440.11 from action at law or in admiralty on account of injury of such employee of another subcontractor.

1974 Fla.Laws 74-197, Vol. 1, 546. This permits tort actions between employees of subcontractors and effectively overrules the decision in Miami Roofing. The supreme court recognized this in Motchkavitz v. L.C. Boggs Industries, Inc., 407 So.2d 910 (Fla.1981). However, though the petitioner there encouraged the court to recede from Younger on the basis of the amendment to section 440.10, the majority declined to do so, holding:

This amendment to section 440.10 disclaimed the intent to make subcontractors liable for securing coverage for each others' employees, and correspondingly abrogated their immunity from suit by each others' employees. Thus the amendment did not explicitly (sic) deal with the situation presented in Younger and in the present case, although it seems to have overruled Miami Roofing. Whatever effect the amendment may have had on the Younger doctrine, however, it does not apply to this case, since all of the operative facts transpired before the enactment of chapter 74-197.

407 So.2d at 914. Then Chief Justice Sundberg, joined by Justice Adkins, dissented, saying:


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4 cases
  • Bruno v. Destiny Transp., Inc., 2D04-5300.
    • United States
    • Court of Appeal of Florida (US)
    • 3 Marzo 2006
    ...and Destiny and was responsible for providing workers' compensation benefits for all such employees. See Abernathy v. Employers Ins. of Wausau, 428 So.2d 272, 273 (Fla. 2d DCA 1982). Employers are statutorily immune from liability beyond that provided in section 440.10. This statutory immun......
  • Dempsey v. G & E Const. Co., s. 88-3040
    • United States
    • Court of Appeal of Florida (US)
    • 13 Diciembre 1989
    ...added the language underlined above precludes the subcontractor's immunity in this suit. He claims that Abernathy v. Employers Ins. of Wausau, 428 So.2d 272 (Fla. 2d DCA 1982), adopted and affirmed in Employers Ins. of Wausau v. Abernathy, 442 So.2d 953 (Fla.1983) supports this position. Ho......
  • Employers Ins. of Wausau v. Abernathy
    • United States
    • United States State Supreme Court of Florida
    • 15 Diciembre 1983
    ...Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae. McDONALD, Justice. In Abernathy v. Employers Insurance of Wausau, 428 So.2d 272, 276 (Fla. 2d DCA 1982), the second district asked the CAN THE EMPLOYEE OF A "CONTRACTOR", HAVING RECEIVED WORKMAN'S COMPENSATION ......
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    • United States
    • Court of Appeal of Florida (US)
    • 21 Octubre 1992
    ...worker's compensation benefits. As this court explained the functioning of sections 440.10 and 440.11 in Abernathy v. Employers Ins. of Wausau, 428 So.2d 272, 273-274 (Fla.2d DCA 1982), approved, Employers Ins. of Wausau v. Abernathy, 442 So.2d 953 [s]ection 440.10(1), Florida Statutes (197......

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