Deen v. Quantum Resources, Inc.

• Decision Date: 21 October 1999
• Docket Number: No. 93,652.,93,652.
• Citation: 750 So.2d 616
• Parties: Ottis Lee DEEN, Jr., Petitioner, v. QUANTUM RESOURCES, INC., and Florida Power & Light Co., Respondents.
• Court: Florida Supreme Court

750 So.2d 616

Ottis Lee DEEN, Jr., Petitioner, v. QUANTUM RESOURCES, INC., and Florida Power & Light Co., Respondents.

No. 93,652.

Supreme Court of Florida.

October 21, 1999.

Wagner, Vaughan & McLaughlin, P.A., Tampa, Florida, and Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, Florida, for Petitioner.

Yvette Miranda Chapman of the Law Office of Hyde, Gomer & Derrick, Tampa, Florida; Stuart C. Markman and Susan H. Freemon of Kynes, Markman & Felman, P.A., Tampa, Florida; and Robert B. Sendler, Law Department, Florida Power & Light Company, Juno Beach, Florida, for Respondents.

WELLS, J.

We have for review Deen v. Quantum Resources, Inc., 713 So.2d 1075 (Fla. 2d DCA 1998), in which the Second District Court of Appeal affirmed per curiam without opinion the trial court's granting of summary judgments and certified to this Court the following question of great public importance:

DOES A SELF-INSURED PUBLIC UTILITY WHICH UNDERTAKES, PURSUANT TO SECTION 440.571, FLORIDA STATUTES (1991) (NOW SECTION 624.46225, FLORIDA STATUTES (1997)), TO PROVIDE WORKERS' COMPENSATION COVERAGE TO A SUBCONTRACTOR WORKING ON ITS PROPERTY, OBTAIN THE BENEFIT OF WORKERS' COMPENSATION IMMUNITY PROVIDED IN SECTION 440.11, FLORIDA STATUTES (1991), AS TO INJURIES SUSTAINED BY AN EMPLOYEE OF THE SUBCONTRACTOR RESULTING FROM THE NEGLIGENCE OF THE PUBLIC UTILITY?

Deen, 713 So.2d at 1075. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed herein, we answer the question in the negative, quash the decision of the Second District Court of Appeal, and remand for proceedings consistent with this opinion.

BACKGROUND

The following facts are without dispute:

FP & L entered into a contract with National Installation Services Co. (NISCO) as an independent contractor to perform repairs at its Manatee Electrical Generating Facility. On May 19, 1992, appellant Ottis Lee Deen, Jr. (Deen), an employee of NISCO, was injured while working on the site when he fell from scaffolding to a concrete floor below. He sued FP & L, alleging his injuries were caused by FP & L's negligence in the construction and maintenance of the scaffolding. He also sued Quantum Resources, Inc. (Quantum), another subcontractor FP & L hired to supervise the various contractors on the job.

The contract between FP & L and NISCO required FP & L to provide for workers' compensation benefits for NISCO's employees under FP & L's self-insurance program. Both FP & L and Quantum moved for summary judgment, claiming that they were immune from suit because of the "exclusive remedy" provision of the Workers' Compensation Act. FP & L's motion asserted immunity based on the fact that it had, by contract, provided workers' compensation benefits to NISCO's employees. Quantum claimed that the single employee it had provided to the job was a "borrowed servant" of FP & L and that it therefore enjoyed the protection of FP & L's immunity from suit. The trial court granted the motions for summary judgment based on [Cartier v. Florida Power & Light Co., 594 So.2d 755 (Fla. 3d DCA 1991)].

Deen, 713 So.2d at 1076 (Patterson, J., dissenting).

The Second District majority cited Cartier, affirmed without analysis the summary judgments of the trial court, and certified the question to this Court. Deen, 713 So.2d at 1075. In his dissent, Judge Patterson disagreed with the majority's affirmance of the summary judgments and advocated reversal and certification to this Court of conflict with Cartier. He contended that the Third District in Cartier incorrectly stated the law in its holding that a self-insured public utility that provides workers' compensation coverage to a subcontractor working on its property obtains workers' compensation immunity under section 440.11, Florida Statutes, as to negligence suits by employees of the subcontractor. Deen, 713 So.2d at 1075. He agreed with Deen's argument below in favor of strict statutory construction of the Workers' Compensation Law and stated that he would hold that FP & L, having no statutory liability to provide workers' compensation coverage but only such liability voluntarily assumed by contract, is not entitled to workers' compensation immunity. Id. at 1077.

In this Court, petitioner Deen bases his argument upon the reasoning of Judge Patterson's dissent and argues that only his employer, NISCO, was statutorily obligated to provide workers' compensation benefits to him under section 440.10(1)(a), Florida Statutes (1991), and thus that his employer, NISCO, but not FP & L, has worker's compensation immunity from suit, which is available only to an "employer" as defined in the Workers' Compensation Law. In response, FP & L asks us to construe the statute to find that FP & L stands in the shoes of NISCO and thus assumes NISCO's immunity by contractually assuming the obligation of providing workers' compensation benefits to subcontractors.¹

Under our plain reading of section 440.38(1)(c), Florida Statutes (1991), and section 440.571, Florida Statutes (1991) (now section 624.46225, Florida Statutes (1999)), the contractual assumption by selfinsured public utilities of the obligation to provide workers' compensation to employees of subcontractors does not give the utility immunity from suit as a third-party tortfeasor. Rather, we conclude that the statutes confer such immunity only upon the statutorily defined employers who have statutory liability for workers' compensation coverage. Thus, we answer the certified question in the negative based upon the following analysis of the relevant statutes and case law.

LAW AND ANALYSIS

The issue presented by this case is whether section 440.38(1)(c) renders a selfinsured public utility immune from a third-party tort claim that is based upon the utility's alleged negligence and is brought by an injured employee of an employer whom the utility has contractually agreed to insure against a workers' compensation loss. Our analysis of this statute is that its effect is to simply allow the public utility to act as the insurer of workers' compensation risk for an employer who otherwise would have to purchase workers' compensation insurance from a licensed insurer. Section 440.38(1)(c) provides the employer with a means by which the employer can satisfy the statutory obligation to secure payment for compensation mandated by section 440.38 by using the self-insurer services that the statute authorizes for public utilities rather than by using the other provisions specified in section 440.38 for securing such coverage.

First, we note that the legislature has required employers to provide workers' compensation coverage as follows: "Every employer coming within the provisions of this chapter ... shall be liable for, and shall secure, the payment to his employees... of the compensation payable [under this chapter]." § 440.10(1), Fla. Stat. (1991). As a quid pro quo for requiring employers' liability for payment of workers' compensation benefits, the statute provides to such employers an immunity from tort lawsuits by employees as follows: "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." § 440.11(1), Fla. Stat. (1991). In Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954), in which this Court was asked to determine the scope of such statutory immunity, we held:

The question is whether the Workmen's Compensation Act imposed upon the Corporation the duty, as an "employer" and "contractor," to secure compensation for such employees. It is the liability to secure compensation which gives the employer immunity from suit as a third party tortfeasor. His immunity from suit is commensurate with his liability for securing compensation-no more and no less.

Jones, 72 So.2d at 287; see also Ramos v. Univision Holdings, Inc., 655 So.2d 89, 90 (Fla.1995); Gulfstream Land & Development Corp. v. Wilkerson, 420 So.2d 587, 589 (Fla.1982); Conklin v. Cohen, 287 So.2d 56, 59 (Fla.1973); Smith v. Ussery, 261 So.2d 164, 165 (Fla.1972). In Jones, we addressed the issue as to whether Florida Power Corporation (the Corporation) was an "employer" within the meaning of the Workers' Compensation Law when the Corporation was sued as a third-party tortfeasor by an employee of an independent contractor, and the Corporation had required the independent contractor to provide workers' compensation coverage for its employees working on the Corporation's premises. 72 So.2d at 287. We held that, under those circumstances, the Corporation was not an employer of the plaintiffs and thus was not liable for and required to secure workers' compensation for employees of the subcontractor and, therefore, had no immunity from suit. Id. at 289.

Subsequent to our decisions in Jones and its progeny, the legislature enacted in 1983 the subsection at issue in this case, section 440.571, Florida Statutes (1991), which provides:

A self-insured public utility, as authorized by s. 440.38(1)(b) [sic],[²] may assume by contract the liabilities under this chapter of contractors and subcontractors, or each of them, employed by or on behalf of such public utility when performing work on or adjacent to property owned or used by the public utility.

Ch. 83-305 § 19, at 1806, Laws of Fla. (originally codified at § 440.571, Florida Statutes; now codified at § 624.46225, Florida Statutes (1999)). This provision, which is now properly part of the Insurance Code, is read in para materia with the statutory authorization of a contractual assumption of workers' compensation liability by a public utility and was provided as an option for employers who are required to provide workers' compensation coverage and are subcontractors of public utilities, as follows:

(1) Every employer shall secure the payment of compensation under this chapter:

. . . .

(c) By entering into a contract with a public utility under an approved

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