Footstar Corp. v. Doe
| Decision Date | 14 July 2006 |
| Docket Number | No. 2D05-4134.,2D05-4134. |
| Parties | FOOTSTAR CORPORATION, a foreign corporation; f/k/a and a/k/a Foot Action, Inc., a foreign corporation; f/k/a and a/k/a Foot Action USA, a foreign corporation; f/k/a and a/k/a Regency Square Foot Action 209, f/k/a and a/k/a Gulf View Square Foot Action, f/k/a and a/k/a Foot Action, Appellant, v. John DOE and Jane Doe, as next friends and guardians of Minor Child, Appellees. |
| Court | Florida District Court of Appeals |
Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg, for Appellant.
Kennedy Legler, III, and Edwin Bradley of Legler & Flynn, Bradenton, for Appellees.
Footstar Corporation, a footwear retailer, appeals from an order denying its motion for summary judgment based on its affirmative defense of workers' compensation immunity. We must dismiss this case for lack of jurisdiction.
The substance of the trial court's order is as follows:
Defendant's, Footstar Corporation, Motion for Summary Judgment is denied. See, Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099 [(Fla.1989)].
Although there is no common law cause of action for sexual harassment in Florida, City of Miami Beach v. Guerra, 746 So.2d 1159 (Fla. 3d DCA 1999), the Byrd decision apparently does not require a discr[ete] statutory cause of action for sexual harassment to be pled in order to avoid the exclusivity of the Workers' Compensation Act remedy.
Footstar contends that Florida Rule of Appellate Procedure 9.130(a)(3)(C)(v) authorizes an appeal to the district court from this order. That rule provides jurisdiction over orders determining "that, as a matter of law, a party is not entitled to workers' compensation immunity." After oral argument and our further review of the parties' arguments and appendices, we realize that Footstar is incorrect and that this court lacks jurisdiction.
The order under review does nothing more than simply deny the defendant's motion for summary judgment. The order does not explicitly state, as a matter of law, that Footstar is not entitled to rely upon a workers' compensation immunity defense at trial, nor does it enter judgment against Footstar on the issue of workers' compensation immunity. "There is no determination, on the face of the order, that the respondents are precluded and prohibited, as a matter of law, from asserting the application of workers' compensation immunity from liability at the time of trial." Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 821 (Fla.2004). The supreme court in Reeves reiterated its holding in Hastings v. Demming, 694 So.2d 718 (Fla.1997), in which it had settled a conflict among the district courts, and held that "[n]onfinal orders denying summary judgment on a claim of workers' compensation immunity are not appealable unless the trial court order specifically states that, as a matter of law, such a defense is not available to a party." Hastings, 694 So.2d at 720 (emphasis supplied). The clear language from Reeves and Hastings convinces us that the order is not appealable unless it includes the specific words denying the motion as a matter of law; the appellate court cannot supply the jurisdictional language by inference. The order must "conclusively and finally determine[ ] a party's nonentitlement to such immunity." Pizza Hut of Am., Inc. v. Miller, 696 So.2d 340, 341 (Fla.1997).
The difficulty in this case stems from the state of the pleadings and the facts toward which the motion for summary judgment was directed. The trial court never determined that there was an absence of genuine issues of material fact, the prerequisite to determining entitlement to summary judgment as a matter of law. To the contrary, at the hearing on the motion for summary judgment, the trial court specifically stated that factual issues remained. Furthermore, the amended complaint, when examined in light of the law surrounding the availability of the workers' compensation immunity defense in the context of sexual batteries in the workplace, further obfuscated the issues. The trial court was precluded from determining, as a matter of law, that Footstar was not entitled to its workers' compensation immunity defense, and it did not do so.
Accordingly, this appeal is dismissed.
I fully concur in the dismissal of this appeal for lack of jurisdiction. I write solely to elaborate upon the difficulty the plaintiffs will ultimately face in formulating a complaint that will survive Footstar's workers' compensation immunity defense.
The Does sued Footstar and alleged that their minor daughter, Ms. Doe, sustained damages during an episode that occurred during her brief employment as a sales clerk at a Footstar retail outlet. On the day of the incident leading to this lawsuit, Ms. Doe and her supervisor, Joel V. Cooper, were the only employees in the store when he allegedly directed her to accompany him to a back room to help him locate a pair of shoes for a customer. The Does' amended complaint asserts that Mr. Cooper then assaulted, sexually battered, and raped Ms. Doe. The amended complaint further alleges that these acts and other prior abusive and harassing conduct constituted Mr. Cooper's efforts to humiliate and control Ms. Doe as a subordinate employee. As a result of these acts, the Does claim that Footstar is legally responsible for damages to compensate them for Ms. Doe's continued extreme and debilitating humiliation, emotional distress, and loss of self-esteem and dignity.
Footstar's motion for summary judgment asserted that the exclusivity doctrine of the workers' compensation law barred the claim. Under the workers' compensation statutory scheme an employer is not liable in tort for injuries or damages sustained by an employee in the workplace. Instead, a form of strict liability has been placed upon the employer with a formula for payment to injured employees. See Seaboard Coast Line R.R. Co. v. Smith, 359 So.2d 427 (Fla.1978). The statutory scheme does not allow the injured employee to recover for certain noneconomic damages, such as pain, suffering, humiliation and emotional distress. See § 440.093, Fla. Stat. (2004) ().
Relying on Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099 (Fla.1989), the trial court denied Footstar's motion. Additionally, the trial court concluded:
Although there is no common law cause of action for sexual harassment, City of Miami Beach v. Guerra, 746 So.2d 1159 (Fla. 3d DCA 1999), the Byrd decision apparently does not require a discr[ete] statutory cause of action for sexual harassment to be pled in order to avoid the exclusivity of the Workers' Compensation Act remedy.
In Byrd, 552 So.2d 1099, our supreme court answered in the negative a question that this court had certified in Byrd v. Richardson-Greenshields Securities, Inc., 527 So.2d 899 (Fla. 2d DCA 1988): whether the workers' compensation statute provides the exclusive remedy for a claim based on sexual harassment in the workplace. The plaintiffs in Byrd, female employees of the defendant corporation, asserted claims for assault, battery, intentional infliction of emotional distress, and negligent hiring and retention of a certain branch manager. Additionally, the plaintiffs sought damages for emotional anguish and stress. They alleged that the branch manager repeatedly touched them and made verbal sexual advances at their place of employment during work hours. Because it determined that, by statute workers' compensation was the exclusive remedy for the plaintiffs' injuries, the trial court dismissed the tort claims. This court affirmed. 527 So.2d at 902.
In quashing this court's opinion, the supreme court's analysis began with the legal premise that generally workers' compensation "is the sole tort remedy available to a worker injured in a manner that falls within the broad scope and policies of the workers' compensation statute." Byrd, 552 So.2d at 1100. The recognized legislative intent behind the workers' compensation statute was to abolish potential liability arising from an employee's injury and to substitute the exclusive remedy provided by the workers' compensation statutory framework. Accidental injuries arising out of and in the course of employment would be covered; not covered were claims of mental or nervous injury absent physical injury. Id.
After completing its review of legislative intent, the supreme court stated, "[W]e cannot find that acts constituting sexual harassment were ever meant to fall under workers' compensation." Id. at 1102. In support of this conclusion, the court noted that both the state and federal governments had enacted legislation outlawing sexual harassment in the workplace. Id. at 1102-03
The supreme court highlighted the different nature of the injuries encompassed by the two statutory frameworks. Workers' compensation claims tend to address purely economic injury, i.e., lost resources and earnings. By comparison, sexual harassment claims involve "a much more intangible injury to personal rights." Id. at 1104. These intangible claims are generally based upon civil rights laws or similar legislation prohibiting sexual harassment or discrimination. Claims arising, as did the claims in Byrd, from workplace torts causing injury to intangible personal rights may stand and proceed outside workers' compensation immunity. Such claimants are not seeking compensation for lost wages or other economic losses as a result of their injuries; rather, they seek to vindicate the violation of their personal rights. Id.
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