Halifax Paving, Inc. v. Scott & Jobalia Const. Co., Inc.

• Citation: 565 So.2d 1346
• Decision Date: 26 July 1990
• Docket Number: No. 73746,73746
• Court: United States State Supreme Court of Florida
• Parties: 15 Fla. L. Weekly S404 HALIFAX PAVING, INC., etc., Petitioner, v. SCOTT & JOBALIA CONSTRUCTION COMPANY, INC., Respondent.

Page 1346

565 So.2d 1346 15 Fla. L. Weekly S404 HALIFAX PAVING, INC., etc., Petitioner,
v.
SCOTT & JOBALIA CONSTRUCTION COMPANY, INC., Respondent. No. 73746. Supreme Court of Florida. July 26, 1990.

J. Lester Kaney of Cobb, Cole & Bell, Daytona Beach, for petitioner.

Richard Prospect of Haas, Boehm, Brown, Rigdon, Seacrest & Fischer, P.A., Daytona Beach, for respondent.

KOGAN, Judge.

We have for review Scott & Jobalia Construction Co., Inc. v. Halifax Paving,

Page 1347

Inc., 538 So.2d 76 (Fla. 5th DCA 1989), based on express and direct conflict with Mann v. Pensacola Concrete Construction Co., Inc., 448 So.2d 1132 (Fla. 1st DCA), review denied, 461 So.2d 115 (Fla.1984). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

While working on a construction site in Volusia County, Scott & Jobalia Construction Co. ("S & J") borrowed a crane and its operator from Halifax Paving, Inc. There was no oral or written lease and no rent or other compensation was paid. The crane was loaned purely as a matter of courtesy. Although the crane operator was solely an employee of Halifax, his activities nevertheless were controlled by S & J workers through the use of hand signals. During work, a pipe fell from the sling attached to the crane and injured one of S & J's workers, named Grier.

Grier recovered worker's compensation from S & J, and then filed suit against Halifax as owner of the crane. Halifax, through its insurance carrier, United States Fidelity & Guaranty, settled Grier's claim for $67,500. Halifax then sued S & J for common law indemnity, contending that any active negligence was attributable to S & J. The jury concluded that the crane operator was a "borrowed servant" and returned a verdict for Halifax. Scott & Jobalia, 538 So.2d at 79.

On appeal, the Fifth District reversed. It concluded that the owner of a dangerous instrumentality loaned for use on a job site fell within the scope of the worker's compensation immunity enjoyed by the employer. As a result, the exclusive remedy available to Grier was worker's compensation and no tort action or resulting claim for indemnity was proper. Id. at 82. This review ensued.

Florida law long has recognized the "borrowed servant" rule. See Postal Telegraph & Cable Co. v. Doyle, 123 Fla. 695, 167 So. 358 (1936). Under this rule, one who borrows and exercises control over the servant or worker of another in effect assumes all liability for the activities of the borrowed servant or worker. Id. We believe the record contains substantial competent evidence to show that the crane operator became a "borrowed servant" within the definition of that term provided in Shelby Mutual Insurance Co. v. Aetna Insurance Co., 246 So.2d 98, 101 (Fla.1971).

Similarly, this Court established in Smith v. Ryder Truck...