Kennedy v. Moree, 94-1451

• Decision Date: 23 February 1995
• Docket Number: No. 94-1451,94-1451
• Parties: 20 Fla. L. Weekly D514 Thomas E. KENNEDY and Michael T. Carp, Appellants, v. Nicholas MOREE and TCI Telecommunications, Inc., a Delaware corporation, Appellees.
• Court: Florida District Court of Appeals

Page 1102

650 So.2d 1102

20 Fla. L. Weekly D514

Thomas E. KENNEDY and Michael T. Carp, Appellants, v. Nicholas MOREE and TCI Telecommunications, Inc., a Delaware corporation, Appellees.

No. 94-1451.

District Court of Appeal of Florida Fourth District.

Feb. 23, 1995.

Susan B. Yoffee of Fleming, Haile, Shaw & Gundlach, P.A., North Palm Beach, for appellants.

Thomas E. Kingcade of Thomas E. Kingcade, P.A., West Palm Beach, for appellee-Nicholas Moree.

PARIENTE, Judge.

In this appeal we review a non-final order denying defendants' motion for summary judgment which raises the issue of worker's compensation immunity for its corporate officers and directors. We conclude that we have jurisdiction to review the trial court's order pursuant to rule 9.130(a)(3)(C)(vi), Florida Rules of Appellate Procedure. We reverse because even if we accept all of the facts in the light most favorable to plaintiff, as a matter of law the record in this case does not demonstrate a level of culpability attributable to defendants in their individual capacities sufficient to overcome their entitlement to worker's compensation immunity.

Ordinarily we would be without jurisdiction to review non-final orders denying motions for summary judgment, however meritorious the motions may appear. The supreme court in Mandico v. Taos Construction, Inc., 605 So.2d 850 (Fla.1992), carved out a limited exception by adopting Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi). The rule states that an appellate court has jurisdiction to review non-final orders which determine "that a party is not entitled to workers' compensation immunity as a matter of law." This rule has been interpreted by our court as encompassing review of non-final orders denying summary judgment which are based on either the trial court's factual or legal determinations. See The Breakers Palm Beach, Inc. v. Gloger, 646 So.2d 237 (Fla. 4th DCA 1994); see also Ross v. Baker, 632 So.2d 224 (Fla. 2d DCA 1994).

On the day of his accident, plaintiff was employed as a general laborer by Kennedy Contracting, Inc. (employer). Plaintiff was seriously injured in the course of his employment when he fell over a television cable while carrying a bucket of hot tar across the roof. The tar splashed over him, inflicting third-degree burns. Plaintiff received and accepted worker's compensation benefits from employer. However, he sued the corporate officers of employer, Thomas E. Kennedy (Kennedy) and Michael T. Carp (Carp) (collectively defendants), along with Telecommunications, Inc. (TCI), the provider of cable television services to the home where plaintiff was injured, alleging each defendant's individual responsibility for the accident.

Kennedy is the president and director of employer and Carp is the vice president, secretary, treasurer and director of employer. Defendants assert that, as corporate officers and directors of employer, they are entitled to worker's compensation immunity as a matter of law pursuant to subsection 440.11(1), Florida Statutes (1993), unless they acted with culpable negligence towards plaintiff. Plaintiff agrees that culpable negligence is the standard to apply in determining whether immunity has been abrogated for Kennedy and Carp, but contends that the determination should be made by a jury. The trial court denied summary judgment without stating its reasons.

The pertinent background and uncontradicted facts are that employer had contracted with homeowners Benjamin and Sandra Calissi to repair a roof damaged by Hurricane Andrew. Employer subcontracted with Charles Poore Roofing to perform some of the roofing work on the Calissi home. Plaintiff had worked on the roof for some time prior to the day he was injured. On the day of the accident, Lance Goodine, a supervisor for employer, told plaintiff to assist the employees of Charles Poore Roofing on the roofing work.

The cable, which caused plaintiff to trip, had been present on the roof during the entire roofing job, including the tear-off procedure and drying-in procedure. Goodine, as supervisor of employer, was aware of the presence of the cable. He made a conscious decision not to remove it, but rather, to have employees work around it. When asked why he did not remove it, Goodine testified:

It never was a real problem to any of us. I mean we tore the roof off, put the new dry-in back on, 10 tagged it, did everything with it there. It was just a TV cable. Ben Calissi was a pretty good guy, I didn't want to take his TV from him. Basically that's it.

It was undisputed that Carp had never been to the job site. Kennedy had been on the job site prior to the injury, but had not been on the roof. Neither Carp nor Kennedy saw the cable prior to the injury, nor were they told about the cable by anyone, including the supervisor on the job. Neither Kennedy nor Carp had any direct contact with plaintiff, nor had they met plaintiff prior to the injury. Additionally, they were not consulted about, involved in, or told about the decision to work around the cable rather than remove it.

Plaintiff contends that a number of issues of material fact remained concerning defendants' knowledge of the presence of the cable on the roof and the degree of negligence they possessed. Concerning the issue of knowledge, because Kennedy was on the job site, plaintiff argues a jury could infer that he could have seen the cable from the ground based on Goodine's testimony that it was visible from street level if a person was looking for it. Plaintiff also asserts that the supervisor's conscious decision to leave a loose cable on the roof constituted a violation of federal law, the Occupational Safety and Health Act (OSHA), which must be imputed to defendants.

Generally, worker's compensation is an exclusive remedy provided by statute for an employee injured on the job against his or her employer. However, an exception to this exclusivity permits third-party liability lawsuits against fellow employees who act with willful and wanton disregard, unprovoked physical aggression or gross negligence with respect to another employee. Subsection 440.11(1) specifically provides, in pertinent part, that:

The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer's business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death....

Prior to 1988, an injured employee was permitted to sue a corporate officer, director or supervisor of an employer for gross negligence, placing the corporate official in the same position as a fellow employee even when performing the employer's nondelegable duty to maintain a safe work place. Streeter v. Sullivan, 509 So.2d 268 (Fla.1987). In Streeter, the supreme court concluded that by the plain language of subsection 440.11(1) the statute "unambiguously impose[s] liability on all employees for their gross negligence resulting in death or injury to their fellow employees. This imposition of liability is blind to corporate status." Id. at 271.

In 1988, the legislature amended subsection 440.11(1) in response to Streeter, specifically differentiating the tort liability of corporate officers, directors or supervisors of an employer from the liability of fellow employees. 1988 Fla. Laws ch. 88-284. The following pertinent language was added:

The same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed exceeds 60 days imprisonment as set forth in s. 775.082.

To interpret the effect of this amendment, we must look to section 775.082, Florida Statutes (1993), which sets forth the penalties for categories of crimes, to determine which violations of law carry penalties in excess of 60 days. Under this section, only those...