Gustafson's Dairy, Inc. v. Phiel

• Decision Date: 30 September 1996
• Docket Number: No. 95-3996,95-3996
• Citation: 681 So.2d 786
• Parties: 21 Fla. L. Weekly D2146 GUSTAFSON'S DAIRY, INC., a Florida corporation, Appellant, v. Harry D. PHIEL and Beatrice Phiel, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 786

681 So.2d 786

21 Fla. L. Weekly D2146

GUSTAFSON'S DAIRY, INC., a Florida corporation, Appellant, v. Harry D. PHIEL and Beatrice Phiel, his wife, Appellees.

No. 95-3996.

District Court of Appeal of Florida,

First District.

Sept. 30, 1996.

John Moffitt Howell of Coker, Myers, Schickel & Sorenson, P.A., Jacksonville, for Appellant.

Scott D. Sheftall and Richard C. Alvarez of Floyd, Pearson, Richman, Greer, Weil, Brumbaugh & Russomanno, P.A., Miami, for Appellees.

VAN NORTWICK, Judge.

Gustafson's Dairy, Inc., appeals a non-final order denying its motion for summary judgment in an action by appellees Harry D. Phiel and Beatrice Phiel to recover damages for injuries suffered by Mr. Phiel in the course of his employment by Gustafson's. Gustafson's motion sought summary judgment on the grounds, inter alia, that the dairy was immune from suit under section 440.11(1), Florida Statutes (1989). Initially, we conclude that no disputed issues of material fact relating to the immunity issue remained in the instant case and that this nonfinal order determined that Gustafson's is not entitled to workers' compensation immunity as a matter of law. Accordingly, we have jurisdiction pursuant to Rule 9.130(a)(3)(c)(vi), Florida Rules of Appellate Procedure. Further, we conclude that, even if all factual inferences are resolved in favor of the Phiels, under the facts of this case, Gustafson's is entitled to workers' compensation immunity as a matter of law. Thus, we reverse and remand with directions to enter summary judgment in favor of Gustafson's. We also certify conflict with other district courts of appeal on the jurisdictional issue.

I.

Mr. Phiel had been working for Gustafson's Dairy for four days when in June 1989 he seriously injured his right hand. For the first three days of his employment, Phiel had painted the so-called "blow mold room," the room within the dairy operations in which plastic milk jugs are manufactured. When Phiel completed the painting, he was instructed to return to the blow mold room and cut up the milk jugs which had been rejected in the manufacturing process. While he was engaged in this task, a milk jug jammed in a trimmer machine. The other workers in the room were busy, and Phiel decided to un-jam the machine. He lifted the safety shield in front of the trimmer machine, as he had seen other employees do many times, and reached his hand into the machine to remove the jammed milk jug. His right hand was caught by the blades of the trimmer machine, causing severe injuries to the hand.

Initially, Phiel brought a products liability lawsuit against the manufacturer of the machinery, alleging that the trimmer device was unreasonably dangerous and defective in that it lacked guards, shields or an automatic shutoff switch, which would prevent the injuries which occurred in this case. During discovery, however, Phiel learned that the trimmer machines were originally equipped with the safety features, but that the safety features were inoperable at the time of Phiel's accident. At that point, the instant action was filed naming Gustafson's as a defendant.

The dairy filed a motion for summary judgment asserting in part that, as the employer of Phiel, Gustafson's was immune from liability under the provisions of Chapter 440. The trial court denied the motion without explanation. This appeal followed.

II.

Sua sponte, this court raised the issue of its jurisdiction to review the trial court's order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi). Upon consideration of the parties' responses and a review of the record, we conclude that this court has jurisdiction to consider this appeal.

Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi) provides that this court can review a non-final order of a lower tribunal which determines "that a party is not entitled to workers' compensation immunity as a matter of law." The trial court below simply denied Gustafson's motion for summary judgment without giving any indication whether it was determining entitlement to workers' compensation immunity as a matter of law. Thus, on the face of the order on appeal, the jurisdiction of this court to hear this appeal is unclear. Specifically, we were unable to conclude solely from the order itself whether the trial court found that summary judgment was not appropriate because unresolved factual issues remained or whether the trial court found that no issues of material fact existed and determined that Gustafson's was not entitled to immunity as a matter of law. See, Ross v. Baker, 632 So.2d 224, 225 (Fla. 2d DCA 1994) ("It seems somewhat unusual to treat an order denying a motion as an order 'determining' an issue.... [S]uch orders may merely establish that the trial court currently views the issue of immunity to involve unresolved factual questions as well as legal questions.")

Thus, we requested the parties to provide a supplemental record to enable this court to determine whether it possessed the jurisdiction to review the order on appeal. This supplemental record, including the motion for summary judgment, the memoranda of the parties filed in relation thereto, and the pretrial order of the trial court, indicates that, when the motion was heard, the discovery of the parties was completed and the facts pertinent to this suit were fully developed and ready for presentation at the approaching trial. Compare, ACT Corp. v. Devane, 672 So.2d 611 (Fla. 5th DCA 1996) (order denying motion for summary judgment which was entered "without prejudice" to party renewing its motion after discovery, was not an appealable order under Rule 9.130(a)(3)(C)(vi) because the trial court had not determined entitlement to workers' compensation immunity as a matter of law). Both parties assert that this court has jurisdiction under Rule 9.130(a)(3)(C)(vi) because the lower court determined the issue of workers' compensation immunity "as a matter of law."

The district courts of Florida are in conflict concerning whether Rule 9.130(a)(3)(C)(vi) grants district courts of appeal jurisdiction to review a non-final order denying a motion for summary judgment in which the trial court concluded that there were issues of material fact regarding the defendant's entitlement to workers' compensation immunity. Compare, Breakers Palm Beach, Inc. v. Gloger, 646 So.2d 237 (Fla. 4th DCA 1994), and City of Lake Mary v. Franklin, 668 So.2d 712 (Fla. 5th DCA 1996) (appellate jurisdiction exists to review an order denying motion for summary judgment raising workers' compensation immunity even though issues of fact remain), with Pizza Hut of America, Inc. v. Miller, 674 So.2d 178 (Fla. 2d DCA 1996), and Hastings v. Demming, 21 Fla. L. Weekly D1756, D1757, --- So.2d ----, ---- (Fla. 2d DCA July 31, 1996) (the rule confers "jurisdiction to review only that type of nonfinal order in which a lower tribunal, based on undisputed material facts, has determined clearly and conclusively, beyond doubt, that a party is not entitled to workers' compensation immunity as a matter of law.").

We find ourselves in agreement with Judge Lazzara's thorough opinion in Hastings. As in Hastings, we conclude that Rule 9.130(a)(3)(C)(vi) is intended "to apply only when an appellate court is presented with a record with facts so manifest it can readily conclude that a plaintiff's exclusive remedy is in fact workers' compensation...." Id. Thus, if the trial court denies a motion for summary judgment because questions of material fact remained relating to the issue of workers' compensation immunity, then the rule does not confer jurisdiction to review such a non-final order. Further, if the appellate court

cannot discern from the record or the order under review that the facts presented to the trial court in connection with the motion[ ] for summary judgment were so fixed and definite that the court was in a position to determine clearly and conclusively, beyond doubt that [the employer was] not entitled to workers' compensation immunity as a matter of law,

id., then the non-final order does not meet the jurisdictional test under Rule 9.130(a)(3)(C)(vi) and is not reviewable on appeal. ¹

In the instant case, the order on its face does not provide a basis for our jurisdiction to review this non-final order. From our review of the instant record, however, we are able to conclude that no issue of material fact relating to the issue of workers' compensation immunity remained and that the trial court's order was the result of its legal conclusion, based upon the undisputed facts, that Gustafson's was not entitled to workers' compensation immunity. We thus have jurisdiction under Rule 9.130(a)(3)(C)(vi). We certify conflict with Breakers Palm Beach, supra, and City of Lake Mary, supra.

III.

Turning to the merits of the instant case, even if all facts are interpreted most favorably to the Phiels, we conclude that the dairy is entitled to workers' compensation immunity as a matter of law. Under section 440.11, Florida Statutes (1993), an employer who properly secures workers' compensation coverage for its employees is provided with immunity from suit "so long as the employer has not engaged in any intentional act designed to result in or that is substantially certain to result in injury or death to the employee." Eller v. Shova, 630 So.2d 537, 539 (Fla.1993). The Florida Supreme Court has emphasized that in considering whether an employer's actions constitute an "intentional tort" a strict interpretation must be given the definition of intentional tort "because nearly every accident, injury and sickness occurring at the workplace results from someone intentionally engaging in some triggering action." Fisher v. Shenandoah Gen. Const. Co., 498 So.2d 882, 884 (Fla.1986). Here, if all facts and inferences are resolved in favor of the Phiels, it is clear that there is no evidence the dairy committed an intentional tort sufficient to allow the Phiels to avoid the...