Motchkavitz v. L. C. Boggs Industries, Inc., s. 78-1945

Citation384 So.2d 259
Decision Date04 June 1980
Docket NumberNos. 78-1945,78-1973,s. 78-1945
CourtCourt of Appeal of Florida (US)
PartiesRonald MOTCHKAVITZ and Joan Motchkavitz, his wife, Appellants, v. L. C. BOGGS INDUSTRIES, INC., Zuckerman & Vernon Corp., a Florida Corporation, and Theodore Faber, an individual, Appellees. ZUCKERMAN & VERNON CORPORATION, a Florida Corporation, Appellant, v. Ronald MOTCHKAVITZ and Joan Motchkavitz, his wife, L. C. Boggs Industries, Inc., and Theodore Faber, an individual, Appellees.

Walter H. Beckham, Jr., and Joel D. Eaton of Podhurst, Orseck & Parks, P.A., Miami, and Beckham, McAliley & Proenza, Miami, for appellants-Motchkavitz in No. 78-1945.

Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O'Hara, Miami, for appellant-Zuckerman & Vernon Corp. in No. 78-1973.

Robert P. Kelly of Pyszka, Kessler & Adams, Fort Lauderdale, for appellee-L. C. Boggs.

GLICKSTEIN, Judge.

Ronald Motchkavitz and Joan Motchkavitz, his wife, together with Zuckerman & Vernon Corporation appeal from a summary final judgment in favor of L. C. Boggs Industries, Inc. We affirm.

The record discloses that Zuckerman was the owner of property in Hallandale on which Gulfstream Garden Apartments, a condominium, was being constructed in 1972. In order to construct the project, Zuckerman used the general contractor's license of its vice president, Arthur Siegel, to secure the required permit and entered into separate contracts with different contractors for the plumbing, concrete, electrical, and other work. Specifically, Zuckerman engaged May Plumbing Company, Inc., for the plumbing work; May, in turn, contracted with L. C. Boggs Industries, Inc., for catch basins. On November 20, 1972, a backhoe operated by a Boggs' employee struck and injured Ronald Motchkavitz, an employee of May. Motchkavitz received workmen's compensation benefits from May and its insurer, and brought the present action, joined by his wife, against Zuckerman, Boggs and Faber, the allegedly negligent employee of Boggs. Boggs moved for summary judgment on the ground that workmen's compensation was the exclusive remedy available to Motchkavitz. The trial court agreed.

The sole issue on appeal is whether the statutes in effect at the time of the accident precluded an action for damages by an employee of a contractor against his employer's subcontractor for the negligence of one of the subcontractor's employees when the contractor has secured payment of workmen's compensation benefits for its injured employee. We conclude that they did.

The governing statutes, Sections 440.10(1) and 440.11(1), Florida Statutes (1971), provide as follows:

440.10 Liability for compensation. (1) Every employer coming within the provisions of this chapter, including any brought within the chapter by waiver of exclusion or of exemption, shall be liable for and shall secure the payment to his employees of the compensation payable under §§ 440.13, 440.15 and 440.16. In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

440.11 Exclusiveness of liability. (1) The liability of an employer prescribed in § 440.10 shall be exclusive and in place of all other liability of such employer to any third party tort-feasor and to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee or his legal representative, in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by negligence of a fellow servant, that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.

At oral argument counsel for the Motchkavitzes conceded that May was a "contractor" within the language of the above statutes. Nevertheless, appellants argue that the statutes only immunize a contractor, not a subcontractor, and should be narrowly construed because they are in derogation of the employee's right to sue for his injuries. Trail Builders Supply Co. v. Reagan, 235 So.2d 482 (Fla.1970). They further argue that judicial precedent has extended immunity to a subcontractor only when there was a general contractor involved, Younger v. Giller Contracting Co., 143 Fla. 335, 196 So 690 (1940) 1 and has rejected immunity when there were as here an owner-builder and an independent contractor, C & S Crane Service, Inc. v. Negron, 287 So.2d 108 (Fla.3d DCA 1973), cert. denied, 296 So.2d 49 (Fla.1974). Appellants chronicle numerous decisions. 2

We hold that in determining whether a subcontractor may be sued for injuries sustained by an employee of its contractor, it is totally irrelevant whether the contractor is a "general" or "independent" contractor. The statutes in question use neither term. All that must be established is the relationship of...

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3 cases
  • Motchkavitz v. L. C. Boggs Industries, Inc.
    • United States
    • Florida Supreme Court
    • December 10, 1981
    ...BOYD, Justice. This cause is before the Court for review of a decision of the district court of appeal, Motchkavitz v. L. C. Boggs Industries, Inc., 384 So.2d 259 (Fla. 4th DCA 1980), which the court certified as having passed upon a question of great public importance. The court also certi......
  • Williams v. Corbett Cranes, Inc., 80-930
    • United States
    • Florida District Court of Appeals
    • April 8, 1981
    ...agree with the Fourth District Court of Appeal that the issue involved is one of great public importance. Motchkavitz v. L. C. Boggs Industries, Inc., 384 So.2d 259 (Fla. 4th DCA 1980). The Legislature, in enacting the provisions of Chapter 440, abrogated the common law and made workmen's c......
  • Chase v. Tenbroeck
    • United States
    • Florida District Court of Appeals
    • May 26, 1981
    ...it was a subcontractor hired to perform part of the work for which Independent Steel contracted. See Motchkavitz v. L. C. Boggs Industries, Inc., 384 So.2d 259 (Fla.4th DCA 1980); C & S Crane Service, Inc. v. Negron, 287 So.2d 108 (Fla.3d DCA), cert. denied, 296 So.2d 49 (Fla.1974). Central......

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