Larzelere v. Employers Ins. of Wausau
| Decision Date | 15 January 1993 |
| Docket Number | No. 91-04047,91-04047 |
| Citation | 613 So.2d 510 |
| Parties | 18 Fla. L. Week. D300 Charles LARZELERE and Christel Larzelere, his wife, Appellant, v. EMPLOYERS INSURANCE OF WAUSAU, a Mutual Company, C.P. Ward, Inc., KBH Equipment Company, SSP Construction Equipment, Inc., SSP Industries, Fred Gramlich and Enterprise Building Corporation, Appellees. |
| Court | Florida District Court of Appeals |
John A. Lloyd, Jr., of John Lloyd Law Offices, P.A., St. Petersburg, for appellants.
Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller, Goldman, Freeman & Lovell, P.A., St. Petersburg, for appellees C.P. Ward and KBH Equip.
Charles Larzelere and Christel Larzelere, his wife, have appealed from a final summary judgment in favor of C.P. Ward, Inc., and KBH Equipment Company. We reverse.
Charles Larzelere, an employee of Enterprise Building Corporation, was injured on the job when shorejacks being raised by a crane fell and hit him. The crane was owned and furnished by KBH and Ward, but the crane and the operator had been leased to Enterprise. When the accident occurred, Enterprise's employees had seated the load on the hook and were directing the crane operator with hand signals.
The trial court granted summary judgment on the ground that suit against KBH and Ward was barred by the exclusive remedy provision of section 440.11, Florida Statutes, the workers compensation statute. The trial court concluded that, as in Halifax Paving v. Scott & Jobalia Construction Co., Inc., 565 So.2d 1346 (Fla.1990), the crane had become a workplace tool of Enterprise. See Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla.1966). When a dangerous instrumentality is leased to an employer, the lessor shares the employer's worker's compensation immunity from suit by employees. Morales v. Ryder Truck Rental, 559 So.2d 317 (Fla. 3d DCA 1990). The crane operator, acting under Enterprise's direction, became Enterprise's borrowed servant.
Although the trial court acted correctly in its disposition of the negligence issue, it failed to take into account that the Larzeleres had also sued Ward and KBH for supplying a defective crane. In the order granting summary judgment in favor of Ward and KBH on the issue of the crane operator's negligence, the trial court did not preserve the Larzeleres' pleaded product liability claim.
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