Hamilton v. Shell Oil Co., 69--391

• Decision Date: 18 March 1970
• Docket Number: No. 69--391,69--391
• Citation: 233 So.2d 179
• Parties: Robert E. HAMILTON, individually and for the use and benefit of Transamerica Insurance Company, a foreign corporation authorized to do business in the State of Florida, Appellant, v. SHELL OIL COMPANY, a Delaware corporation authorized to do business in the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 179

233 So.2d 179

Robert E. HAMILTON, individually and for the use and benefit of Transamerica Insurance Company, a foreign corporation authorized to do business in the State of Florida, Appellant, v. SHELL OIL COMPANY, a Delaware corporation authorized to do business in the State of Florida, Appellee.

No. 69--391.

District Court of Appeal of Florida, Fourth District.

March 18, 1970.

Charles Desmond Crowley, Fort Lauderdale, for appellant.

Kirk Sullivan, of Sullivan & Robinson, West Palm Beach, for appellee.

CROSS, Chief Judge.

Appellant-plaintiff, Robert E. Hamilton, individually and for the use and benefit of Transamerica Insurance Company, a workmen's compensation carrier, appeals a summary final judgment entered in favor of the defendant, Shell Oil Company, in an action to recover damages for Hamilton, medical and compensation benefits paid and to be paid by Transamerica Insurance Company to Hamilton. We affirm.

This is the second appearance of this cause in this court. Its initial appearance, Hamilton v. Shell Oil Co., Fla.App.1968, 215 So.2d 21, was predicated upon a final judgment entered by the trial court entitled 'Order of Dismissal' which dismissed upon defendant's motion plaintiff's amended complaint for failure to state a cause of action. We did not pass on the merits at that time, but merely reversed the judgment of the trial court and remanded the cause for leave to be granted the plaintiff to amend the complaint if he so desired. Upon remand, the plaintiff amended the complaint. Thereafter both plaintiff and defendant moved for summary judgment. Summary final judgment was entered for the defendant against the plaintiff. This appeal followed.

The facts are uncontroverted that the plaintiff, Robert E. Hamilton, was an employee of a corporation named 'Manpower, Inc.' This corporation functions as a personnel broker. It supplies personnel to companies which have need for workers, either on special projects or to fill in a day or so. Pursuant to a contract between Manpower, Inc., and the defendant, Shell Oil Company, Manpower, Inc., agreed to furnish personnel to perform certain functions in connection with the operation of a gas station owned and operated by the Shell Oil Company in Palm Beach County. Approximately three months prior to the happening of the accident which gave rise to this cause of action, the Plaintiff-Hamilton went to the Shell Service Station in Palm Beach County and applied for a job as a station attendant. After an interview with a local field representative for Shell, the plaintiff was hired and told by the representative what his wages, hours and duties would be. At the time that the plaintiff was hired, he was told by the Shell representative that his checks would come from Manpower, Inc.

Within a week after plaintiff was hired and went to work at defendant's service station, Manpower's agent or employee then contacted the plaintiff to sign a W--2 form (a federal income tax form). This appears to be the only contact that the plaintiff had with Manpower, Inc., with the exception that he did receive his weekly paychecks from Manpower. Plaintiff's gross wages were $105.50 per week. Manpower billed the defendant, Shell Oil Company, $156.62 per week. The difference between these two figures was Manpower's gross profit, out of which it paid unemployment compensation and workmen's compensation premiums and Manpower's general overhead. The balance was Manpower's net profit.

During the period of plaintiff's employment at Shell's service station he was under the supervision of Shell's local field representative. The plaintiff received instructions from Shell's representative as to the procedures he would follow upon the delivery to the station of gasoline by tank trucks. Plaintiff was instructed to inspect the tanks of the trucks before and after gasoline was pumped from the trucks into the defendant's underground storage tanks.

To inspect the tanks it was necessary for plaintiff to climb to the top of the truck. This climb was made by means of a metal ladder affixed to the truck in such a way that the metal frame of the truck became one of the rungs of the ladder. During one of these inspections, as plaintiff descended the truck ladder, his foot slipped on the metal frame which was smooth and slippery, causing him to fall and be injured.

Upon these facts the trial court determined that at the time of the occurrence of the accident the plaintiff was a 'special employee of the defendant Shell.' As such 'special employee' of Shell he was foreclosed from bringing this action for, damages under the provisions of F.S. Section 440.11, F.S.A. ¹

The only issue before this court is whether the defendant, Shell Oil Company, was an 'employer's of the plaintiff within the meaning of the workmen's compensation law so as to make plaintiff's recovery under that law exclusive, thus barring this suit against the...