General Motors Acceptance Corp. v. David

• Decision Date: 09 February 1994
• Docket Number: No. 93-1792,93-1792
• Citation: 632 So.2d 123
• Parties: 19 Fla. L. Weekly D309 GENERAL MOTORS ACCEPTANCE CORPORATION, a foreign corporation and Herman M. Johnson, Appellants, v. Raymond A. DAVID, Jr., as Personal Representative of the Estate of Janice F. David, deceased; and Robert H. Highfill, Jr., as Personal Representative of the Estate of Denise D. Highfill, deceased, Appellees.
• Court: Florida District Court of Appeals

Page 123

632 So.2d 123

19 Fla. L. Weekly D309

GENERAL MOTORS ACCEPTANCE CORPORATION, a foreign corporation and Herman M. Johnson, Appellants, v. Raymond A. DAVID, Jr., as Personal Representative of the Estate of Janice F. David, deceased; and Robert H Highfill, Jr., as Personal Representative of the Estate of Denise D. Highfill, deceased, Appellees.

No. 93-1792.

District Court of Appeal of Florida First District.

Feb. 9, 1994.

Rehearing Denied March 14, 1994.

Thomas M. Burke and Lavinia K. Dierking of Cabaniss, Burke & Wagner, P.A., Orlando, W.L. Kirk and George Meros of Rumberger, Kirk & Caldwell, P.A., Tallahassee, for appellants.

Fred M. Abbott of A. Abbott Law Offices, P.A., Jacksonville, Alan C. Sundberg and Sylvia H. Walbolt of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, for appellees.

DAVIS, Judge.

Appellants, General Motors Acceptance Corporation (GMAC) and Herman M. Johnson appeal from a non-final order denying their motion for summary judgment. The trial court ruled as a matter of law that, viewed in the light most favorable to the non-moving parties, the evidence would be sufficient to deny appellants workers' compensation immunity. Accepting the facts as described in the trial court's order, we conclude that the trial court erred in its interpretation of the law. ¹ Appellants claim immunity pursuant to section 440.11(1), Florida Statutes (1991). Section 440.11(1) grants employers and employees engaged in managerial or policy making decisions immunity from tort actions by employees. For the following reasons, we reverse.

GMAC, a financial services company engaged in automobile financing, purchased James Pough's contract on or about December 26, 1988, from Coggin Pontiac, Inc. (Coggin) in violation of its own retail buying procedures. Information contained in Pough's credit application and his contract indicated that the chances were very low that Pough would make all the payments under his contract. On January 24, 1990, Pough voluntarily returned his car to GMAC's office because he had experienced a substantial reduction in his income and could no longer afford the car. GMAC sold the car and applied the net proceeds to Pough's debt, leaving a deficiency balance of $6,394.00. GMAC sent two deficiency notices stating the amount owed, but took no further action to collect. GMAC's last contact with Pough was when it sent a second deficiency notice in April 1990. Pough's last contact with GMAC was on June 8, 1990, when he contacted GMAC to discuss making payments.

On June 17, 1990, Pough went on a rampage in which he shot four people, killing two of them, injured a woman with his car and held up a convenience store. On June 18, 1990, Pough went to GMAC's Jacksonville office and opened fire on GMAC's customers and employees. Pough killed nine persons, including employees Janice David and Denise Highfill, and wounded four others. Pough then killed himself. Highfill was employed as a customer service representative. David was employed as a customer information supervisor.

At the time GMAC purchased Pough's contract, GMAC had an arrangement with Coggin in which Coggin would hold down GMAC's losses on cars repossessed from unqualified buyers. Johnston, the branch manager of GMAC's Jacksonville office, pursued buying practices in which individuals who did not qualify under GMAC's credit guidelines had their contracts purchased from Coggin. After that arrangement ended, the number of repossessions from the Jacksonville GMAC office greatly increased.

Prior to Pough's shootings on June 18, 1990, Johnston issued a series of memoranda to all Jacksonville dealerships which applied for financing, in which he expressed concern about the people to whom GMAC was extending credit. Johnston also applied pressure on GMAC employees to collect on delinquent accounts. In addition, GMAC's president and vice-president issued memoranda to branch managers concerning the dangers created to GMAC employees by the failure to follow GMAC collection and repossession policies.

Prior to Pough's rampage, GMAC Jacksonville office employees experienced confrontations with angry customers, some of whom threatened them with physical harm. GMAC's Jacksonville office did not have security measures to prevent customers from having direct access to GMAC employees.

At the time of the shootings by Pough on June 18, 1990, decedents David and Highfill were employees of GMAC and were killed in the course and scope of their employment. GMAC secured workers' compensation coverage for the decedents. The personal representatives of David and Highfill's estates filed complaints against GMAC in which plaintiffs alleged that GMAC knowingly and intentionally directed decedents to work in a credit/lending office when GMAC knew, because of the complete lack of security, decedents were with substantial certainty subject to open attacks by armed felons. Plaintiffs further alleged that GMAC engaged in credit/lending practices and acquired loans placed with individuals such as James Pough who had a criminal history and history of violence and bad credit and who resided in an area known for drugs and violence. Plaintiffs also alleged that Johnston, as the manager of GMAC, was grossly negligent in failing to install or recommend installation of even rudimentary security which was readily available and affordable and which could have protected decedents from death and by encouraging collection practices and implementing standards for the acquisition of loans which encouraged a violent response from violent individuals residing in areas where Johnston knew that arguments were regularly settled through a resort to violence and gunfire.

Appellants moved for summary judgment on the ground that they were immune from suit pursuant to section 440.11(1), Florida Statutes (1991). In denying appellants' motion, the trial court erred.

An employer who properly secures workers' compensation coverage for its employees is immune from suit so long as the employer has not engaged in an intentional act designed to result in injury or death or conduct which is substantially certain to result in injury or death to an employee. ² Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882, 883 (Fla.1986), citing Spivey v. Battaglia, 258 So.2d 815 (Fla.1972); Lawton v. Alpine Engineered Products, Inc., 498 So.2d 879, 880 (Fla.1986). This standard requires more than a strong probability of injury. It requires virtual certainty. Fisher, 498 So.2d at 884; Lawton, 498 So.2d at 880. In Fisher, the Florida Supreme Court stressed that a strict interpretation must be...