EAC USA, INC. v. Kawa

• Citation: 805 So.2d 1
• Decision Date: 11 July 2001
• Docket Number: No. 2D00-3582.,2D00-3582.
• Parties: EAC USA, INC., formerly known as Heidelberg Eastern, Inc., Appellant, v. Daniel James KAWA and Roberts Quality Printing, Inc., a/k/a Roberts Printing, Inc., Appellee.
• Court: Court of Appeal of Florida (US)

805 So.2d 1

EAC USA, INC., formerly known as Heidelberg Eastern, Inc., Appellant, v. Daniel James KAWA and Roberts Quality Printing, Inc., a/k/a Roberts Printing, Inc., Appellee.

No. 2D00-3582.

District Court of Appeal of Florida, Second District.

July 11, 2001.

Rehearing Denied August 27, 2001.

Stacy D. Blank and Michael Goetz of Holland & Knight LLP, Tampa, and Richard A. Menchini, NY, for Appellant.

H. Vance Smith of Smith, Clark, Delesie, Bierley, Mueller & Kadyk, Tampa, for Appellee Roberts Quality Printing, Inc.

No appearance for Appellee Daniel James Kawa.

CAMPBELL, MONTEREY, (Senior) Judge.

EAC USA, Inc., formerly known as Heidelberg Eastern, Inc., challenges the final summary judgment entered in favor of Roberts Quality Printing, Inc., on EAC's indemnity cross-claim, and the trial court's order denying EAC's motion to amend its cross-claim to assert an additional claim against Roberts for contribution. At oral argument, EAC abandoned its challenge to the summary judgment on its indemnity cross-claim and focused on the order denying EAC's motion to amend its cross-claim. We reverse the order denying EAC's motion to amend its cross-claim.

Daniel Kawa filed a complaint against EAC and Roberts in July 1997, seeking recovery for injuries he sustained in connection with his employment by Roberts. At the time of the accident, Kawa was working as a pressman on a printing press owned by Roberts and allegedly designed, manufactured, and sold by Heidelberg Eastern, Inc., the predecessor of EAC. Kawa was injured when he attempted to "hickey pick" while the printing press was running at full speed. A "hickey" is a foreign object, such as dried ink or paper residue, that has adhered to the plate cylinder of the printing press resulting in a blemish on the final printed product. "Hickey picking" is the process of removing the hickey from the plate. As Kawa reached in to remove a hickey, his arm was drawn into the running press.

In his complaint, Kawa asserted claims against EAC for strict liability and negligence, and against Roberts for negligence and intentional tort. In turn, EAC filed a cross-claim against Roberts seeking indemnification from Roberts for any damages EAC was required to pay Kawa. Roberts filed a motion for summary judgment on EAC's cross-claim for indemnification contending that the nature of EAC's alleged liability to Kawa precluded recovery on its indemnity cross-claim. According to Roberts, Kawa's claims against EAC asserted liability directly attributable to EAC, whereas, under Florida law, EAC could recover on its indemnity cross-claim against Roberts only if its liability was vicarious, constructive, derivative, or technical. Roberts also moved for summary judgment on all of Kawa's claims contending that it was entitled to workers' compensation immunity under the provisions of section 440.11, Florida Statutes (1997).

Prior to the hearing on Roberts's motions for summary judgment, EAC moved for leave to amend its cross-claim to assert an additional claim against Roberts for contribution. In the motion for leave to amend, EAC explained that discovery since the filing of the original cross-claim revealed that EAC possessed a viable contribution claim against Roberts under the Uniform Contribution Among Tortfeasor's Act, section 768.31, Florida Statutes (1997). EAC attached its proposed amended cross-claim to the motion for leave to amend. Roberts objected to the contribution claim, again contending that it was entitled to workers' compensation immunity.

In its proposed contribution claim, EAC included the allegations necessary to overcome Roberts's claim of workers' compensation immunity. EAC alleged that Kawa was employed by Roberts and had sustained injuries in the performance of that employment; that Kawa alleged that EAC's predecessor, Heidelberg Eastern, Inc., had designed, manufactured, and sold to Roberts the printing press involved in Kawa's injury; that Roberts intentionally, and without regard for the safety of Kawa and others, removed from the printing press a safety guard designed to prevent accidents like Kawa's; that Roberts knew the absence of the safety guard from the printing press created a dangerous condition, but intentionally chose to disregard that danger; that the owners, supervisors, and other employees and agents of Roberts intentionally instructed Kawa to engage in dangerous work practices, including the removal of "hickeys" from unguarded areas of the printing press while the press was running; that the owners, supervisors, employees, and agents of Roberts disregarded at least two notices advising Roberts of available safety guards and other safety devices that would have prevented access to the area of the printing press where Kawa was injured; and finally, that Roberts consciously and intentionally engaged in this conduct with the intent to injure Kawa, or alternatively, that Roberts's conduct was substantially certain to result in the injury or death of Kawa.

The trial court heard argument on Roberts's motions for summary judgment against Kawa and EAC, as well as EAC's motion for leave to amend the cross-claim. The trial court granted Roberts's motion for summary judgment against Kawa and denied EAC's motion for leave to amend its cross-claim to assert a claim against Roberts for contribution. Despite EAC's and Kawa's allegations regarding Roberts's conduct, the court ruled as a matter of law that Roberts was entitled to the immunity provisions of section 440.11, granted Roberts's motion for summary judgment on Kawa's claims, and granted summary judgment in favor of Roberts on EAC's indemnity cross-claim. The trial court entered final judgment in favor of Roberts on both Kawa's claims and EAC's cross-claim.

The trial court denied EAC leave to amend its cross-claim based solely on the court's erroneous conclusion that EAC could not state a cause of action for contribution against Roberts because of Roberts's workers' compensation immunity under section 440.11. In light of the decision in Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000), which was decided after the trial court's rulings, the trial court's order denying EAC's motion to amend must be reversed. In Turner, the supreme court confirmed that workers' compensation immunity under section 440.11 is not absolute. Employers are not immune from liability for conduct that is substantially certain to injure an employee.

Under section 440.11, an employee gives up the right to assert common law actions for negligence against its employer in exchange for the imposition of strict liability and the rapid recovery of benefits. Employers are, in turn, afforded immunity from common law negligence suits. Notwithstanding, Florida courts have recognized an exception to workers' compensation immunity for intentional torts. Employees, and third parties alike, may assert intentional tort claims against an employer otherwise immune from common law claims for negligence. See Turner, 754 So.2d at 683

.

In Fisher v. Shenandoah General Construction Co., 498 So.2d 882 (Fla.1986), aff'd in part and receded from in part by Turner, 754 So.2d at 687,

the supreme court held that to prove the existence of an intentional tort, an employee or third party must allege that the employer either "exhibit[ed] a deliberate intent to injure or engage[d] in conduct which is substantially certain to result in injury or death." See also Lawton v. Alpine Engineered Prods., Inc., 498 So.2d 879 (Fla.1986),

aff'd in part and receded from in part by Turner, 754 So.2d at 687; Gerth v. Wilson, 774 So.2d 5 (Fla. 2d DCA 2000). Florida appellate courts improperly interpreted the decisions in Fisher and Lawton as requiring an elevated standard of proof. Several of the district courts of appeal held that the term "substantial certainty" required proof of "virtual certainty"; that is, to overcome the statutory immunity, an employee was required to prove that the employer engaged in conduct that was "virtually certain" to cause injury to the employee. See Clark v. Gumby's Pizza Sys., Inc., 674 So.2d 902 (Fla. 1st DCA 1996); United Parcel Serv. v. Welsh, 659 So.2d 1234 (Fla. 5th DCA 1995); Kenann & Sons Demolition, Inc. v. Dipaolo, 653 So.2d 1130 (Fla. 4th DCA 1995). In Turner, however, the supreme court rejected that interpretation. The court explained...