Lluch v. American Airlines, Inc., 3D03-3118.

• Decision Date: 16 March 2005
• Docket Number: No. 3D03-3118.,3D03-3118.
• Citation: 899 So.2d 1146
• Parties: Jose LLUCH, Appellant, v. AMERICAN AIRLINES, INC., and Carlton Lloyd Service, Appellees.
• Court: Florida District Court of Appeals

899 So.2d 1146

Jose LLUCH, Appellant, v. AMERICAN AIRLINES, INC., and Carlton Lloyd Service, Appellees.

No. 3D03-3118.

District Court of Appeal of Florida, Third District.

March 16, 2005.

Rehearing Denied April 29, 2005.

Fernando Freire; and Billbrough & Marks, and Geoff Marks, Miami, for appellant.

Arthur C. Moller, Miami, and Roger A. Zaldivar, for appellees.

Before LEVY, C.J., and GREEN, and RAMIREZ, JJ.

RAMIREZ, J.

Jose Lluch appeals the trial court's summary judgment entered in favor of defendants American Airlines, Inc. and Carlton Lloyd Service, as well as dismissal of Lluch's complaint with prejudice, based on workers' compensation immunity provided to a statutory employer under section 440.11, Florida Statutes (2003). We reverse and remand because we hold that there was a genuine issue of material fact whether Lluch and Service were involved in "unrelated works," thus precluding summary judgment.

Lluch, a custodian/janitor employed for over ten years by ABM Janitorial Services, worked at Miami International Airport. ABM has a contract with American to provide cleaning services for American at the airport. Their contract expressly provides that ABM is an independent contractor.

Lluch's duties included cleaning and disposing of trash in offices, common areas, ramps and gates. Using a vacuum tractor, he cleaned the outdoor luggage ramps used by all airlines. He also picked up and disposed of discarded pallets and cleaned up oil spills from aircraft. Lluch had never observed Miami-Dade County personnel inspect the ramp area. That was the responsibility of American employees. He received his work instructions from ABM supervisors, and they inspected his work. He never received any orders or was supervised by American employees or managers. He did not work with any American employees in any common endeavors, and he was prohibited from having anything to do with baggage handling or cargo. He did not load, unload or transport baggage. Lluch did not have anything to do with operation, cleaning, or maintenance of the baggage carousel. Sometimes, he was requested by ABM to clean the floor area adjacent to the baggage carousel. In his deposition, Lluch stated that with regard to the baggage ramp where the airplanes are located (not the airplane's conveyor belt), he made sure that the ramp was clean. Many times he cleaned the carousel underneath the building where the bags are placed to go inside the terminal.

On January 27, 2003, Lluch was working at the airport pulling a large trash cart towards a garbage corral so he could dump American's office trash into a garbage tank. Tractors, tugs, pickup trucks and numerous other motorized vehicles were moving around the area where Lluch was pulling the trash cart. At approximately 3:00 p.m., Carlton Service, an American baggage handler, was operating an American tractor pulling several baggage carts in the area where Lluch was pulling the trash cart. Service hit the trash cart, the cart hit Lluch, and it fell on top of him. Lluch could not get up; his foot was broken. He filed a workers' compensation claim with ABM and is receiving workers' compensation benefits.

Lluch then sued American and Service for negligence. American and Service denied the material allegations of the complaint and asserted the affirmative defense of workers' compensation immunity of Chapter 440, Florida Statutes. American and Service moved for summary judgment on this immunity contending that American was Lluch's statutory employer according to section 440.10(1)(b) and the contract between American and ABM. Service contended that he enjoyed co-employee immunity pursuant to section 440.11(1).

The defendants filed the affidavit of Clifford Coll, American's manager of airport services, who stated that ABM has responsibility for keeping the baggage loading area and conveyor belt in "clean debris free condition." The defendants also filed Lluch's deposition. Lluch testified that he had nothing to do with the operation, cleaning or maintenance of the baggage carousel, although ABM sometimes requested that he clean the floor area adjacent to the carousel. Lluch's deposition provided the only evidence of Service's duties, which Lluch described as loading and unloading baggage from aircraft and delivering it to baggage claim areas. Before the accident occurred, he did not know Service.

We agree with Lluch's contention that the trial court erred in granting summary judgment on workers' compensation immunity by concluding that he and Service were not engaged in unrelated works where there was disputed evidence as to the nature and scope of the employee's work. According to section 440.10, American is considered a contractor. See Delta Air Lines, Inc. v. Cunningham, 658 So.2d 556 (Fla. 3d DCA 1995)

. Under section 440.10, when a contractor sublets any part or parts of its contract work to a subcontractor, all of the employees of the contractor and the subcontractor engaged in such contract work shall be deemed to be employed in one and the same business or establishment. See § 440.10(1)(b), Fla. Stat. (2003). To qualify as a statutory employer, the employer must be under a contractual obligation to perform a task, service or work of some kind for another, and some portion of that work, task or service has to be sublet to another contractor. See S. Sanitation v. Debrosse, 463 So.2d 420 (Fla. 1st DCA 1985). We agree with the trial court that American satisfies this test and thus, American was the statutory employer of Lluch.

We further agree with the trial court that although the contract between ABM and American provided that the relationship between ABM and American shall be that of independent contractors and in no event shall persons employed by either party be held or construed to be employees of the other, Lluch can still be considered an American employee. In Gator Freightways, Inc. v. Roberts, 550 So.2d 1117 (Fla.1989), the Florida Supreme Court held that Gator Freightways was the statutory employer of Roberts, an employee of the independent contractor of Gator Freightways. In that case, the contract between Gator Freightways and Roberts' employer contained the same language as the contract between ABM and American; the contract stated that employees of the independent contractor were not to be deemed employees of Gator Freightways. Id. at 1118. The Florida Supreme Court stated that the purpose of section 440.10 was to "insure that a particular industry will be financially responsible for injuries to those employees working in it, even though the prime contractor employs an independent contractor to perform part or all of its contractual undertaking." Id. at 1119. Consequently, the trial court correctly found that American qualifies as the statutory employer of Lluch, despite the independent contractor clause of the contract between ABM and American.

On the issue of whether workers' compensation immunity is inapplicable here because Lluch and Service were assigned and engaged in unrelated works, we conclude that there are material questions of fact preventing its resolution by summary judgment. According to section 440.11(1), workers' compensation immunity is inapplicable to employees of the same employer 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. See Florida Dep't of Transp. v. Juliano, 864 So.2d 11, 16 (Fla. 3d DCA 2003),

review denied, 866 So.2d 1212 (Fla.2004). Based on the record before us, there are issues of fact as to whether Lluch and Service were assigned primarily to unrelated works...