City of Plantation v. Roberts

• Decision Date: 22 December 1976
• Docket Number: No. 47405,47405
• Citation: 342 So.2d 69
• Parties: CITY OF PLANTATION and Midland Insurance Company, Petitioners, v. Robert L. ROBERTS and Industrial Relations Commission, State of Florida, Respondents.
• Court: Florida Supreme Court

Page 69

342 So.2d 69

CITY OF PLANTATION and Midland Insurance Company, Petitioners, v. Robert L. ROBERTS and Industrial Relations Commission, State of Florida, Respondents.

No. 47405.

Supreme Court of Florida.

Dec. 22, 1976.

Rehearing Denied Feb. 28, 1977.

Edwin H. Underwood and Albert A. Gordon, Underwood, Gillis, Karcher, Reinert & Gordon, Miami, for petitioners.

Robert H. Gregory, Coral Gables, and Donald F. Harrington, Miami, for respondents.

HATCHETT, Justice.

Respondent Roberts was injured while operating a police launch in a canal within the corporate limits of petitioner city. Mr. Roberts was a policeman employed by petitioner, and was acting within the scope of his employment on July 19, 1973, when he was pelted with coconuts which five children threw at him from the canal bank. He filed a claim for workmen's compensation for injuries sustained from the coconuts. His claim was met with a motion to dismiss on the ground that the judge of industrial claims lacked jurisdiction. The theory of the motion was that unspecified federal law created a remedy for an injury of this kind, and also, even before the enactment of Section 440.09(2), Florida Statutes (1975), ousted state tribunals of jurisdiction over accidents occurring on navigable waters. The judge of industrial claims rejected this theory, without deciding whether the canal should be classified as navigable waters, and, on appeal, the Industrial Relations Commission affirmed the denial of the motion to dismiss. By petition for writ of certiorari, the city and its insuror bring the question here. We conclude that the judge of industrial claims properly exercised jurisdiction and deny the petition for writ of certiorari.

As a policeman employed by petitioner city, respondent's principal duties were those of a radar officer in the traffic division. In addition, respondent was one of 'about eleven people that' operated the police launch 'from time to time. Whoever happened to be available, and knew anything about operating the outboard would get it.' (T 23). On this basis, respondent had manned the outboard motorboat on 12 to 15 occasions in the course of more than two and a half years' employment by the police department (which was preceded by two years in the police reserves). Respondent Roberts was out in the police launch alone, investigating a sunken boat, when he was injured.

The city relies on Atlas Iron and Metal Co. v. Hesser, 177 So.2d 199 (Fla.1965), in arguing that the judge of industrial claims had no jurisdiction over respondent's claim. The Atlas Iron and Metal Co. case arose out of an accident which occurred while the employee Hesser was engaged in converting certain naval landing craft into barges for civilian use. The vessels were afloat on navigable waters, moored in a canal. Hesser spent a substantial portion of his working day on land but was aboard ship when he was injured. The question for decision was whether Hesser was entitled to workmen's compensation benefits or whether he was covered by the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C § 903 Et seq., and the Court decided that he was entitled to the benefits of the federal legislation, and therefore not entitled to benefits afforded by the Workmen's Compensation Law. Section 440.01 Et seq., Florida Statutes The holding in Atlas Iron and Metal Co. v. Hesser, supra, rests on the exclusivity provision of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905, and does not control here because the claimant in the present case has no possibility of recovery under the Longshoremen's and Harbor Workers' Compensation Act, ¹ which specifically excludes from its coverage any 'officer or employee . . . of any State . . . government, or of any political subdivision thereof.' 33 U.S.C.A. § 903(a)(2) as amended 1972.

The present case resembles more closely the case of Sikes v. Fort Myers Construction Co., 191 So.2d 265 (Fla.1966), in which a tugboat operator was injured while securing a fuel barge to a dredge. The dredging operation was part of the creation of a series of canals in what was to become a residential development. The Court distinguished the Atlas Iron and Metal Co. case in these words:

Both Atlas Iron and Metal Co. and Calbeck (v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962)) dealt with the problem of whether a state workmen's compensation act or the Federal Longshoremen's and Harbor Workers' Act was controlling. Here the dispute concerns the problem of the applicability of the Florida Workmen's Compensation Law or the Jones Act. There are many differences between the Jones Act and the Longshoremen's Act, the chief of them being that the former necessitates proof of negligence for recovery, while the latter is a compassionate statute from which much of our Workmen's Compensation Act was drawn. The jurisdictional aspects of the two federal acts also differ; therefore Atlas Iron and Metal Co. cannot be decisive in the case sub judice. 191 So.2d at 266 (footnotes omitted)

The Sikes court then noted that the Jones Act, 46 U.S.C. § 688, ² conferred a cause of action only on 'any seaman' and declared that Sikes was not a seaman because 'the 'ship' was a dredge ³ . . . (and Sikes) slept and took his meals on shore and was paid on an hourly basis.' 191 So.2d at 266. The Sikes decision established as a matter of Florida law that workmen's compensation benefits were available to an otherwise eligible workman, who sustained an injury in a man-made canal communicating with navigable waters, so long as the accident fell outside the purview of the Longshoremen's and Harbor Workers' Compensation Act and the workman did not qualify as a 'seaman' within the meaning of the Jones Act. ⁴ Subsequent decisions of this Court have in no way eroded the authority of the holding in Sikes v. Fort Myers Construction Co., supra, in this regard.

It is therefore appropriate to consider whether respondent Roberts is a 'seaman' within the intendment of the Jones Act. ⁵ The master of a vessel, no less than the crew he commands, may be a 'seaman' within the meaning of this Act. South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732 (1940). But in order to qualify as a 'seaman' under the Jones Act, a person must be more or less permanently attached to the vessel. Owens v. Diamond M. Drilling Co., 487 F.2d 74, reh. den., 487 F.2d 1401 (5th Cir. 1973); Dugas v. Pelican Const. Co., 481 F.2d 773 (5th Cir. 1973) Cert. den. sub nom., 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550; McKie v. Diamond Marine Co., 204 F.2d 132 (5th Cir. 1953). A recent decision of the United States Court of Appeals for the Fifth Circuit, Brown v. ITT Rayonier, Inc., 497 F.2d 234 (1974), bears importantly on the question whether respondent Roberts should be viewed as a seaman within the meaning of the Jones Act.

An employee of a paper mill whose 'primary duties were to take samples of wood pulp within the plant and to conduct certain tests' Brown v. ITT Rayonier, Inc., 497 F.2d at 235, was also assigned the job of going more than 20 miles down-river from the plant site 'in a 17-foot outboard motorboat,' Id., to take samples from the river as part of a pollution monitoring program. On one such outing he was injured. When he brought suit under the Jones Act, the Fifth Circuit held he was not a 'seaman':

The basic test used in this circuit for determining crew member status is that stated in Offshore Co. v. Robison, 5 Cir., 1959, 266 F.2d 769, at 779:

'There is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.'

See Dugas v. Pelican Construction Co., 5 Cir., 1973, 481 F.2d 773; Ross v. Mobil Oil Corp., 5 Cir., 1973, 474 F.2d 989; Keener v. Transworld Drilling Co., 5 Cir., 1972, 468 F.2d 729; Labit v. Carey Salt Co., 5 Cir., 1970, 421 F.2d 1333; Thomas v. Peterson Marine Service, Inc., 5 Cir., 1969, 411 F.2d 592; Rotolo v. Halliburton Co., 5 Cir., 1963, 317 F.2d 9; Braniff v. Jackson Ave.-Gretna Ferry, Inc., 5 Cir., 1960, 280 F.2d 523.

In the present case we confront a . . . situation . . . in which the injured worker was aboard the vessel while it was in transit, and in which he was aboard strictly for the purpose of aiding in its navigation. Albeit his duties aboard would be brief, and his principal duties with his employer were on shore, he was at the time of his injury performing tasks that could only be performed while the vessel was under weigh and which, unlike services performed by shore-based workers upon docked vessels, were directly a part of the vessel's navigational mission.

Nonethless, we conclude that the Robison-McKie test is properly applied here to deny status as a crewman. In part we base our conclusion on Dugas v. Pelican Construction Co., supra, and Cox v. Otis Engineering Co., supra. While these opinions do not address themselves to the issue raised before us, they do deny crew member status to drill barge employees who apparently performed work directly involved in the drilling mission. In each instance, the basis of the decision was the temporary, albeit operational, relationship with the vessel. 497 F.2d 236--238.

The conclusion to be drawn from cases like Brown v. ITT Rayonier, Inc., supra, is that the circumstances in which respondent Roberts sustained his injuries make a less compelling case for the applicability of the Jones Act than...