Croon v. Quayside Associates, Ltd., s. 84-362
| Decision Date | 05 February 1985 |
| Docket Number | Nos. 84-362,84-382,s. 84-362 |
| Citation | 10 Fla. L. Weekly 324,464 So.2d 178 |
| Parties | 10 Fla. L. Weekly 324 Walter CROON and Janita Croon, his wife, Appellants, v. QUAYSIDE ASSOCIATES, LTD., a Florida partnership and Quayside Development Corp., a Florida corp., jointly and severally, Appellees. |
| Court | Florida District Court of Appeals |
Horton, Perse & Ginsberg and Edward Perse, Robert Sussman, Miami, for appellants.
Joe N. Unger, Welsh & Telander, Miami, for appellees.
Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
Croon, plaintiff in the trial court, appeals an order granting a new trial, on damages only, and an order on post-trial motions (Case No. 84-362). Quayside cross-appeals. Quayside Associates, defendant in the trial court, appeals an adverse final judgment (Case No. 84-382). The appeals have been consolidated.
Quayside Associates, owner and developer of the Towers of Quayside, contracted with Apgar & Markham to be the general contractor of Tower Two. Apgar & Markham subcontracted with Atlantic Coast Development, Croon's employer, to make the plywood forms for concrete pilings. Subsequently, it was determined that Apgar & Markham were not substantially performing and they were discharged. All the contracts and subcontracts with which Apgar & Markham were involved were assigned to Quayside Associates. In September, 1980, Quayside Associates took over as general contractor. In 1981 Croon was injured as a result of falling in a hole on the construction site of the second tower being built. Because of his injury he could not return to work as a construction worker and he retired.
Croon brought suit against Quayside Associates, Ltd. (the owner and developer) and Quayside Development Corp. (the general partner in Quayside Associates, Ltd. who was the general contractor for the third tower to be constructed).
Quayside Associates and Quayside Development defended the suit on the grounds of nonresponsibility for the construction and non-negligence; that they were immune from suit based upon workers' compensation as a bar, pursuant to Section 440.10, Florida Statutes (1979); and on comparative negligence. The jury found Croon 25% negligent and awarded Croon $2,000,000 and his wife, $45,000. Quayside filed a motion for new trial. The trial court ordered Croon to accept a remittitur in the sum of $1,000,000 or have a new trial on damages only. The order on post-trial motions further stated that the remittitur was based upon the fact that the jury amount was excessive, shocked the judicial conscience and was not supported by the evidence in that $1,500,000 was awarded for past and future pain and suffering. The motion for new trial as to Janita Croon was denied. As Croon failed to accept the remittitur the trial court accordingly entered the order vacating the final judgment and ordered a new trial on the issue of damages.
We turn first to the cross-appeals as our ruling thereon will be dispositive to the entire case. We hold first that a directed verdict should have been granted in favor of Quayside Development because it was clear from the evidence that the accident in question happened on a site with which they were not involved. Heps v. Burdine's, Inc., 69 So.2d 340 (Fla.1954); Sussman v. Tutelman, 445 So.2d 1081 (Fla. 3d DCA 1984).
As to Quayside Associates we hold that a directed verdict should have been granted to them as a successor in interest to Apgar & Markham, the general contractor. By assignment they were responsible for the obligations of the general contractor. The assignment in part reads as follows:
Croon, an employee of Atlantic Coast Development, was injured in a job-related accident suffering a herniated disc in the lumbar spine. He was paid compensation benefits by his employer. At the time of Croon's injury Quayside Associates was the owner and also the general contractor by virtue of assignment of the subcontracts by the original general contractor which was "fired". We hold under these circumstances that Quayside Associates was immune from suit under provision of the Workers' Compensation Law.
Section 440.10, Florida Statutes (1979) provides every employer coming within the provisions of the chapter shall be liable for the payment to his employees of specified compensation benefits. Where a contractor sublets any part of his contract to a subcontractor, all of the employees of the contractor and subcontractor engaged on the contract work are deemed to be employed in one and the same business establishment and the contractor shall be liable for and shall secure payment of compensation to all such employees except where the subcontractor has secured such payment.
Section 440.11, Florida Statutes (1979) titled "Exclusiveness of liability" provides: "The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer ... to the employee ... on account of such injury...."
If the original general contractor, Apgar & Markham, remained on the job through the date on which Croon was injured, January 23, 1981, the suit against Quayside Associates would have been precluded by the immunity doctrine of the Workers' Compensation Law. An owner hiring a general contractor is considered a statutory employer under the terms of the statute. Conklin v. Cohen, 287 So.2d 56 (Fla.1973); Smith v. Ussery, 261 So.2d 164 (Fla.1972); See, Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954); Sheedy v. Vista Properties, Inc., 410 So.2d 561 (Fla. 4th DCA 1982), pet. rev. den., 419 So.2d 1201 (Fla.1982).
It is the liability to secure compensation coverage which gives an employer immunity from suit as a third party tortfeasor. Jones v. Florida Power Corp., supra. This immunity can arise either from being an "employer" or a "contractor". In order to be a "contractor" there must be a contractual obligation on the part of the contractor, a portion of which is sublet to another. Jones v. Florida Power Corp., supra.
Here, Apgar & Markham was hired as the general contractor. Apgar & Markham, in turn, hired the subcontractors. Pursuant to the...
To continue reading
Request your trial
-
Cadillac Fairview of Florida, Inc. v. Cespedes
...which the exclusion expressly set forth in section 440.11 is based. Smith v. Ussery, 261 So.2d 164 (Fla.1972); Croon v. Quayside Associates, Ltd., 464 So.2d 178 (Fla. 3d DCA 1985). Under the clear meaning of chapter 440, there must be a contractual obligation on the part of the contractor, ......
-
Hogan v. Deerfield 21 Corp.
...Broward Hosp. Dist., 402 So.2d 58 (Fla. 4th DCA 1981). 2 As it did in the trial court, Deerfield 21 relies on Croon v. Quayside Assoc., Ltd., 464 So.2d 178 (Fla. 3d DCA), rev. denied, 476 So.2d 673 (Fla.1985). In Croon, an injured employee of a subcontractor who fell into a hole at a constr......
-
Ramos v. Univision Holdings, Inc.
...a statutory employer entitled to workers' compensation immunity. In reaching this conclusion, the court relied on Croon v. Quayside Associates, Ltd., 464 So.2d 178 (Fla.3d DCA), review denied, 476 So.2d 673 (Fla.1985). In Croon, a subcontractor's employee sued an owner who had discharged it......
-
Univision Holdings, Inc. v. Ramos, 93-2055
...statutory employer and is generally entitled to workers' compensation immunity pursuant to section 440.11. See Croon v. Quayside Assocs., Ltd., 464 So.2d 178, 180 (Fla. 3d DCA), rev. denied, 476 So.2d 673 (Fla.1985). There are two exceptions to this general rule. First, "an owner may be hel......