Byrd v. Richardson-Greenshields Securities, Inc.
| Decision Date | 24 June 1988 |
| Docket Number | RICHARDSON-GREENSHIELDS,No. 87-1368,87-1368 |
| Citation | 13 Fla. L. Weekly 1503,527 So.2d 899 |
| Parties | 13 Fla. L. Weekly 1503 Penny BYRD, Marjorie K. Hensley, Janey Mainard Swahn, Debbie K. Smith, Mary Ann Vanlandeghem, and Denise Larson, all individuals, Appellants, v.SECURITIES, INC., a New York corporation, authorized to do business in the State of Florida; and Interstate Securities Corporation, a North Carolina corporation, authorized to do business in the State of Florida, Appellees. |
| Court | Florida District Court of Appeals |
David M. Lipman, Robert E. Weisberg and Stefan Ruud of Lipman & Weisberg, Miami, and Rochelle Z. Catz, Fort Myers, for appellants.
Terence G. Connor and Claudia B. Dubocq of Morgan, Lewis & Bockius, Miami, for appellees.
This case involves the exclusivity of remedies provided by the workers' compensation laws which precludes a common law suit against a corporate employer for alleged emotional injuries to an employee resulting from conduct of another employee.
Plaintiffs, female employees, appeal the trial court's dismissal with prejudice of counts of their amended complaint against defendant employers for compensatory and punitive damages for the tort of intentional infliction of emotional distress. There are two defendant employers because the offices and business of one of them in a particular location were acquired by the other during the course of the conduct which allegedly injured plaintiffs. That conduct was by a male who was also employed by defendants.
The amended complaint alleges that the male employee, a branch manager, made nonconsensual, physical contacts with plaintiffs by touching them repeatedly in various particularly described ways, the nature of which was more than slight or incidental, and made verbal advances in an attempt to force them into sexual activities. It is alleged that defendant employers gave tacit approval to the conduct of the branch manager by having failed to investigate plaintiffs' complaints thereof. The nature of the alleged injuries is characterized in plaintiffs' argument that "the essence of the injury is intimidation of women employees mentally and emotionally" and "the essence of this lawsuit is 'nonphysical' ... for the emotional anguish and stress caused by their boss' [sic] sexual harassment."
Plaintiffs contend that the trial court erred in ruling that the exclusivity of workers' compensation remedies bars this suit against the employers. We affirm. The following summarizes our reasons. We conclude that by reason of a pleading deficiency no cause of action was stated against the employers. Although the amended complaint could be further amended to cure the deficiency, such further amendment would be futile because the workers' compensation laws provide the exclusive remedy in this case. The workers' compensation laws cover emotional injuries resulting from not insubstantial physical contacts, and the exclusivity of workers' compensation remedies against an employer is not precluded by an intentional tort committed by an employee who was the active tort-feasor--and was not the alter ego of the employer--when the involvement of the employer is no more than its having had notice of prior such conduct by the active tortfeasor.
Some other aspects of this suit which we do not address in this opinion should be noted. There were also counts against the employers alleging negligent hiring and retention of the branch manager. One of these counts additionally alleges negligent hiring and retention by one of the employers of another branch manager. These counts against the employers were dismissed with prejudice. 1 This suit further includes counts against one of the branch managers for intentional infliction of emotional distress and for common law assault and battery. These counts against the branch manager were dismissed with leave to amend.
We do not initially address plaintiffs' contention that the trial court erred in its ruling that the workers' compensation laws provide the exclusive remedies against the employers. Plaintiffs characterize that contention as involving the transcendent issue in this case. That may well be. But, as the Florida Supreme Court said in Fisher v. Shenandoah General Construction Co., 498 So.2d 882, 883 (Fla.1986), a district court of appeal in a suit alleging an intentional tort "should not ... [address] the relationship between intentional torts and the Workers' Compensation Act without first answering the threshold question of whether the ... complaint stated a cause of action for intentional tort." Id. at 883. We will therefore first address whether the amended complaint states a cause of action against the employers.
The allegations against the employers are that their "failure to investigate the Plaintiff's [sic] and other complaints ... gave tacit approval" to the conduct of the branch manager. But in the counts for intentional infliction of emotional distress there are no allegations indicating whether the recipients of the complaints were management level personnel who functioned as the alter egos of the corporate employers. Absent at least notice to a person who can genuinely be characterized as the alter ego of a corporate employer, there can be no vicarious liability of the employer for intentional acts of lower level employees who, like the branch manager here, were the active tort-feasors. See Schwartz v. Zippy Mart, Inc., 470 So.2d 720, 724 (Fla. 1st DCA 1985); Alexander v. Alterman Transport Lines, Inc., 350 So.2d 1128 (Fla. 1st DCA 1977). The lack of such allegations concerning the recipients of the complaints precludes a case for vicarious liability of the employers. Alexander.
The trial court's dismissal of the allegations against the employers was, as we have said, with prejudice and on the basis of the exclusivity of workers' compensation remedies. If the dismissal had been for failure to state a cause of action, which is an initial basis for affirmance as we have explained, plaintiffs may then have requested, and the trial court may have granted, leave to file a further amended complaint. It is apparent from other allegations of the amended complaint which were not incorporated into the...
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Byrd v. Richardson-Greenshields Securities, Inc.
...curiae for Florida Defense Lawyers Ass'n. CORRECTED OPINION BARKETT, Justice. We have for review Byrd v. Richardson-Greenshields Securities, Inc., 527 So.2d 899, 902 (Fla. 2d DCA 1988), which certified "the contention in this case concerning the exclusivity of worker's compensation benefits......
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