Carib Ocean Shipping, Inc. v. Armas, 3D02-346.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: SCHWARTZ, Chief.
• Citation: 854 So.2d 234
• Parties: CARIB OCEAN SHIPPING, INC., Appellant, v. Ismael ARMAS, Appellee.
• Docket Number: No. 3D02-346.,3D02-346.
• Decision Date: 03 September 2003

854 So.2d 234

CARIB OCEAN SHIPPING, INC., Appellant,
v.
Ismael ARMAS, Appellee

No. 3D02-346.

District Court of Appeal of Florida, Third District.

September 3, 2003.

Sarnoff & Bayer and Neil Bayer, Coconut Grove, for appellant.

854 So.2d 235

James J. McNally, Coral Gables, for appellee

Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.

SCHWARTZ, Chief Judge.

Carib Ocean Shipping, Inc. appeals from a substantial money judgment entered after a jury trial in favor of the plaintiff Armas, who was injured in an on-the-job accident caused by a co-worker's negligent operation of Carib's crane. We vacate for further proceedings because of the trial court's error and abuse of discretion in failing to permit the defendant to amend its answer so as to raise the potentially conclusive defense of workers' compensation immunity.

I.

Because (a) the plaintiff received comp benefits for his injuries as an employee of the Employer's Services Contract, Inc., a "help-supply services company," under section 440.11(2), Florida Statutes (2002), which also employed the person who improperly operated the crane, see Fleming Companies, Inc. v. Moreira, 690 So.2d 1367 (Fla. 3d DCA 1997); Caramico v. Artcraft Indus., Inc., 727 So.2d 348 (Fla. 5th DCA 1999); Maxson Constr. Co. v. Welch, 720 So.2d 588 (Fla. 2d DCA 1998), and (b) the only asserted basis of Carib's liability to the plaintiff (and thus for the judgment below) was its claimed vicarious liability for that negligence as the owner of the crane under the dangerous instrumentality doctrine, it appears, on the face of it, that this present action simply cannot be maintained. In several cases, the Supreme Court has squarely held that the owner of a dangerous instrumentality is immune from such liability. Commercial Coatings, Inc. v. Pensacola Concrete Constr. Co., 616 So.2d 960 (Fla. 1993)(crane);¹ Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla.1966)(motor vehicle); see Sherrill v. Corbett Cranes Servs., Inc., 656 So.2d 181 (Fla. 5th DCA 1995); see also Caramico, 727 So.2d at 348; Maxson, 720 So.2d at 588; Fleming, 690 So.2d at 1367. Nevertheless, neither the court nor jury even considered the merits of this issue below. This is because, as a result of what appellant's counsel concedes was pure negligence, the immunity defense was not pled, as required, in its answer. Although, shortly before the scheduled trial date, the appellant Carib moved to amend so as to assert the claim as an additional affirmative defense, the trial court denied the motion. We hold that this ruling was an abuse of discretion which compels vacation of the judgment below.

Florida Rule of Civil Procedure 1.190(e) specifically provides that:

At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading or record to be amended or material supplemental matter to be set forth in an amended or supplemental

854 So.2d 236

pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.

In accordance with the language of the rule itself, see generally Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So.2d 302 (Fla. 1st DCA 1991)(general rule favors amendment), it is clear that the "interests of justice" are far better served by determining a case on its substantive merits, rather than a mistake in pleading. See Dole v. Arco Chemical Co., 921 F.2d 484 (3d Cir. 1990)(leave to amend complaint should be granted where no bad faith or dilatory amendment by defendant or undue prejudice to opposing party); General Electric Co. v. Sargent & Lundy, 916 F.2d 1119 (6th Cir.1990)(untimeliness of motion to amend on eve before trial to add defense of privilege no bar to dismissal of suit where no prejudice caused by delay); State Federal Sav. & Loan Ass'n v. W.M. Campbell, 848 F.2d 1186 (11th Cir. 1988)(leave to amend counterclaim day before trial permissible where no unfair surprise or prejudice by amendment); Estes v. Kentucky Utilities Co., 636 F.2d 1131 (6th Cir.1980)(discretionary to allow amendment of answer to assert workers' compensation recovery; delay alone insufficient reason to deny amendment); Howey v. United States, 481 F.2d 1187 (9th Cir.1973)(abuse of discretion to deny government's motion for leave to amend third party complaint against...