Fleming Companies, Inc. v. Moreira

• Decision Date: 02 April 1997
• Docket Number: No. 96-3079,96-3079
• Citation: 690 So.2d 1367
• Parties: 22 Fla. L. Weekly D826 FLEMING COMPANIES, INC., an Oklahoma corporation, Appellant, v. Jorge MOREIRA and Anabel Moreira, Appellees.
• Court: Florida District Court of Appeals

Page 1367

690 So.2d 1367

22 Fla. L. Weekly D826

FLEMING COMPANIES, INC., an Oklahoma corporation, Appellant, v. Jorge MOREIRA and Anabel Moreira, Appellees.

No. 96-3079.

District Court of Appeal of Florida Third District.

April 2, 1997.

Siegel & Diamond, and Glenn N. Siegel, Port Charlotte, for appellant.

Panter & Panter, and Mitchell J. Panter, Miami, for appellees.

Before GERSTEN, GREEN and SHEVIN, JJ.

PER CURIAM.

Appellant, Fleming Companies, Inc. ("Fleming"), appeals an adverse summary judgment in favor of appellees, Jorge Moreira and Anabel Moreira ("Moreira"). We reverse finding the trial court erred in denying Fleming tort immunity under the workers' compensation statute.

Jorge Moreira was hired by Regency Staffing, a temporary labor supply company, who then referred Moreira to Fleming. Fleming was charged a fee by Regency for leasing temporary employees which included payment and workers' compensation insurance. Regency also contractually surrendered all control regarding the details of the temporary worker's employment to Fleming.

In March of 1995, while working at the Fleming plant, Moreira was injured by a forklift. He collected workers' compensation benefits and then filed a complaint seeking damages from Fleming. Fleming asserted that the workers' compensation statute barred the action and both parties moved for summary judgment on the issue of immunity. In denying both motions, the trial court found Fleming was not entitled to civil suit immunity, because there remained genuine issues of material fact pertaining to the borrowed servant/workers' compensation defense.

Florida's workers' compensation law extends an employer's immunity from tort liability to the work related injuries of employees obtained through a "help supply services company." § 440.11(2), Fla. Stat. (1995). Florida courts consistently interpret this statute to apply to companies hiring workers through temporary employment agencies. See B.E.T. Plant Services, Inc. v. Dyer, 678 So.2d 841 (Fla. 3rd DCA 1996); Parker v. State Dep't of Health and Rehabilitative Services, 649 So.2d 361 (Fla. 1st DCA 1995). In Booher v. Pepperidge Farm, the Supreme Court of Florida granted immunity from a temporary employee's tort suit where the temporary employment agency provided workers' compensation coverage. 468 So.2d 985 (Fla.1985). The court also established that where the association between the employee and the special employer is in doubt, the actual employment relationship, and not the subjective intent of the parties, is controlling.

Here, Regency is in the business of supplying temporary help and provided workers' compensation coverage, thereby clearly falling under the terminology of Section 440.11(2). See Sagarino v. Marriott Corp., 644 So.2d 162 (Fla. 4th DCA 1994). Additionally, the actual employment relationship shows that Moreira consented to Fleming's control by using Fleming's equipment, asking Fleming's permission for overtime authorization, and accepting Fleming's orders over how and where to work. Moreover, Moreira...