ACT Corp. v. Devane

• Decision Date: 26 April 1996
• Docket Number: No. 95-1879,95-1879
• Citation: 672 So.2d 611
• Court: Florida District Court of Appeals
• Parties: 21 Fla. L. Weekly D996 ACT CORPORATION, Appellant, v. Mary DEVANE and Steve Devane, Appellees.

Page 611

672 So.2d 611

21 Fla. L. Weekly D996

ACT CORPORATION, Appellant, v. Mary DEVANE and Steve Devane, Appellees.

No. 95-1879.

District Court of Appeal of Florida Fifth District.

April 26, 1996.

Judson I. Woods of Coble, Woods, Seps, Webster, Clayton & Teal, P.A., Daytona Beach, for Appellant.

David A. Vukelja of David A. Vukelja, P.A., Ormond Beach, for Appellees.

DAUKSCH, Judge.

ACT Corporation appeals a non-final order denying a motion for summary judgment. Appellant claims that the order is appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi), which permits review of an order determining that a party is not entitled to worker's compensation immunity as a matter of law.

The pending amended complaint alleges that appellee, Mary Devane, while employed as a residential counselor at a runaway shelter, was attacked and injured by a minor ward of the Department of Health and Rehabilitative Services. HRS contracted with ACT to maintain physical custody of the minor, and she was one of the residents at the shelter. HRS was the legal custodian of the minor, who had an extensive history of criminal assault, behavioral disorders, drug and alcohol abuse, inappropriate sexual behavior, aggression and violence. As a result of the attack, Mary Devane suffered serious and permanent injuries, including brain damage. Devane received over $1,000,000 in worker's compensation benefits and future medical and wage loss benefits. The underlying civil action seeks damages from ACT and various third parties for gross negligence and culpable negligence. ACT filed a motion for summary judgment claiming worker's compensation immunity from civil action pursuant to section 440.11, Florida Statutes (1995). After the hearing on ACT's motion, the trial judge wrote to Devane's counsel instructing him to prepare a proposed order reflecting that ACT's motion would not be ripe for hearing until Devane had been allowed a good faith opportunity to complete discovery. The court entered an order on June 7, 1995. That order was set aside by the order being appealed, which was entered on June 21, 1995. The appealed order denied the motion for summary judgment. However, the court indicated that it was vacating the prior order because the better approach is to deny the motion for summary judgment without prejudice to the motion being raised again when Devane completes discovery.

When employers properly secure worker's compensation coverage for their employees, employers are provided with immunity from suit by their employees so long as the employer has not engaged in any intentional act designed to result in or is substantially certain to result in injury or death to the employee. See Eller v. Shova, 630 So.2d 537 (Fla.1993). In at least two cases, appellants successfully argued that their civil actions against employers for intentional torts should not be barred by a claim of worker's compensation immunity. See Connelly v. Arrow Air, Inc., 568 So.2d 448 (Fla. 3d DCA 1990); Cunningham v. Anchor Hocking Corp., 558 So.2d 93 (Fla. 1st DCA 1990). In these cases, it was alleged that employers deceived or covered up dangers involving the workplace or job, thereby preventing employees from becoming fully aware of those dangers and precluding them from making an informed decision whether to continue employment or perform the assigned task.

The amended complaint in the instant case alleged that ACT, against its stated policy, knowingly housed HRS wards with criminal histories and behavioral disorders at its unsecured facility in order to obtain state money. The complaint further alleged that ACT intentionally subjected its counselors to serious bodily harm because no security precautions were taken in response to the heightened risk of danger. It is also alleged that ACT initially misrepresented material facts to Devane, concealing the history of violence and attacks upon counselors and the type of juveniles allowed at the shelter; subsequently misrepresented to Devane once she learned the true situation that additional personnel and training would be provided to assist in supervising the HRS wards housed at the shelter; and, failed to disclose the history of violence and disruptive behavior of the minor resident who attacked her. ACT's omissions, misrepresentations and method of operation allegedly created an inherently dangerous and chaotic environment...