Lake v. Ramsay, 89-0398

• Decision Date: 29 August 1990
• Docket Number: No. 89-0398,89-0398
• Citation: 566 So.2d 845
• Court: Florida District Court of Appeals
• Parties: 15 Fla. L. Weekly D2156 Ronald Lester LAKE, Appellant, v. Stephen RAMSAY, a Florida corporation, etc., et al., Appellees.

Page 845

566 So.2d 845

15 Fla. L. Weekly D2156

Ronald Lester LAKE, Appellant, v. Stephen RAMSAY, a Florida corporation, etc., et al., Appellees.

No. 89-0398.

District Court of Appeal of Florida Fourth District.

Aug. 29, 1990.

Victor Tobin of Simons, Simons & Tobin, Fort Lauderdale, for appellant.

Neil Rose and Henry T. Wihnyk of Conroy, Simberg & Lewis, P.A., Hollywood, for appellees.

DOWNEY, Judge.

Appellant, Ronald Lester Lake, sued Sergio Fernandez and others for damages sustained as a result of injuries he received due to the defendants' alleged negligence in the construction of the ceiling of the Watermark condominium garage, which collapsed on him while he was working on the premises. Fernandez moved for summary judgment on the ground that he was immune from suit under section 440.11, Florida Statutes (1987), as a coemployee at the time of the accident.

The record indicates that Lake was an employee of the builder, U.S. Lendlease, and his duties included maintenance and janitorial work. Fernandez was employed by U.S. Lendlease as a construction supervisor and also as the qualifying agent on this project. In the course of his duties Fernandez supervised the construction of the ceiling that collapsed and injured Lake.

Lake contends that the trial court erred in granting summary judgment based upon Fernandez's being a coemployee, and thus immune under the worker's compensation law, because the nature of Fernandez's work as a qualifying agent and supervisor of construction precluded his being Lake's coemployee. Furthermore, Lake contends that, even if they were coemployees, Fernandez was not immune from suit because the two of them were assigned primarily to unrelated work, albeit for the same employer.

The first point presented appears to be one of first impression in Florida. It involves the question of whether a person is entitled to immunity under the worker's compensation statute when that person is a qualifying agent and construction supervisor for the employer. The trial judge answered that question in the affirmative.

We commence by acknowledging that Lake and Fernandez were both employees working for the builder, U.S. Lendlease, on a condominium project known as The Watermark. Fernandez was qualified and certified pursuant to section 489.119, Florida Statutes (1981), as the qualifying agent for U.S. Lendlease on this project. He is also described by the parties as a construction supervisor on the job--though this does appear, in some measure, to be a duplication of titles since a qualifying agent is charged by statute with supervision on the job. Gatwood v. McGee, 475 So.2d 720 (Fla. 1st DCA 1985); Hunt v. Dept. of Professional Regulation, Const. Industry Licensing Bd., 444 So.2d 997 (Fla. 1st DCA 1983); Alles v. Dept. of Professional Regulation, Const. Industry Licensing Bd., 423 So.2d 624 (Fla. 5th DCA 1982). Supervisory employees enjoy the immunity afforded their employer unless they engage in conduct that, by direct involvement on their part, constitutes an affirmative act of negligence going beyond the scope of the employer's nondelegable duty. Clark v. Better Const. Co., Inc., 420 So.2d 929 (Fla. 3d DCA 1982); Zurich Ins. Co. v. Scofi, 366 So.2d 1193 (Fla. 2d DCA), cert. denied, 378 So.2d 348 (Fla.1979), superseded by statute/rule as stated in Streeter v. Sullivan, 509 So.2d 268 (Fla.1987). Thus, absent some allegation in the complaint that Fernandez, by direct involvement on his part, violated the above principle by exceeding the employer's nondelegable duty, he is covered by immunity for his activity as an employee supervising the construction.

The purpose of section 489.119 is set forth in Alles as follows:

The obvious purpose of these statutes allowing a company to act as a contractor through a licensed contractor is to insure that projects undertaken by a company are to be supervised by one certified and licensed by the board. To allow a contractor to be the "qualifying agent" for a company without placing any requirement on the contractor to exercise any supervision over the company's work done under his license would permit a contractor to loan or rent his license to the company. This would completely circumvent the legislative intent that an individual, certified as competent, be professionally responsible for supervising construction work on jobs requiring a licensed contractor. [Emphasis added.]

423 So.2d at 626. See also Gatwood v. McGee, 475 So.2d at 723. Thus, under the statute, a qualifying agent not only has a duty to his employer, but he has a further duty to the public as the legislative intent is to require a competent person, professionally responsible for supervising construction work on jobs requiring a licensed contractor. However, we find nothing in the statute that...