Holmes County School Bd. v. Duffell, 93-917
| Decision Date | 06 January 1994 |
| Docket Number | No. 93-917,93-917 |
| Citation | 630 So.2d 639 |
| Parties | 88 Ed. Law Rep. 1283, 19 Fla. L. Weekly D83 HOLMES COUNTY SCHOOL BOARD, Appellant, v. Terry DUFFELL and Linda Duffell, Appellees. |
| Court | Florida District Court of Appeals |
Michael W. Kehoe of Fuller, Johnson & Farrell, P.A., Tallahassee, for appellant.
Barry Gulker of Caminez, Walker & Brown, Tallahassee, for appellees.
The Holmes County School Board (Board) appeals from a non-final order of the trial court denying its motion for summary judgment. We have jurisdiction, Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi), and affirm.
Appellee Terry Duffell was employed by the Board as a custodian. Duffell was injured at work when a school bus driver, Robert Lewis, negligently allowed his school bus to roll forward, pinning Duffell against another vehicle. Duffell filed a civil suit against the Board, which sought summary judgment claiming immunity under Chapter 440, Florida Statutes (1991) (the Workers' Compensation Act). The trial court denied the motion, and the Board's appeal of that ruling was dismissed as untimely filed.
Duffell thereafter entered into a settlement of his workers' compensation claim against the Board, pursuant to section 440.20(12)(a), Florida Statutes (1991). The settlement was approved by the Judge of Compensation Claims, and released the Board from all further liability for workers' compensation benefits except future medical expenses. The Board again moved for summary judgment in the civil suit, citing Duffell's acceptance of workers' compensation benefits and the settlement of his claim. The trial court again denied the motion, holding that "[b]ecause this is essentially a third-party action predicated upon the negligence of Robert Lewis, an employee of [the Board,] the acceptance of workers' compensation benefits does not affect [Duffell's] right to bring this action."
The Board argues that the trial court order appealed herein improperly allows Duffell to repudiate his previous position that he was injured in the course and scope of his employment, in order to obtain further remuneration from the Board in a civil action. See Matthews v. G.S.P. Corp., 354 So.2d 1243 (Fla. 1st DCA 1978); Mandico v. Taos Construction Inc., 605 So.2d 850 (Fla.1992) (). We do not find these cases controlling.
Section 440.11(1), Florida Statutes (1991), provides that workers' compensation is not a claimant's exclusive remedy as to liability of a fellow employee "when each is operating in the furtherance of the employer's business but they are assigned primarily to unrelated works within private or public employment"...
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