Motchkavitz v. L. C. Boggs Industries, Inc.

Decision Date10 December 1981
Docket NumberZUCKERMAN-VERNON,Nos. 59421,59422,s. 59421
Citation407 So.2d 910
PartiesRonald MOTCHKAVITZ, et ux., Petitioners, v. L. C. BOGGS INDUSTRIES, INC., et al., Respondents.CORPORATION, etc., Petitioners, v. Ronald MOTCHKAVITZ, et ux., L. C. Boggs Industries, Inc., et al., Respondents.
CourtFlorida Supreme Court

Beckham, McAliley & Proenza, and Joel D. Eaton of Podhurst, Orseck & Parks, Miami, for petitioners, Ronald Motchkavitz and Joan Motchkavitz.

Richard A. Herman of Wicker, Smith, Blomqvist, Davant, Tutan, O'Hara & McCoy, Miami, for petitioners, Zuckerman-Vernon Corp.

Robert P. Kelly of Pyszka & Kessler, Fort Lauderdale, for respondent, L. C. Boggs Industries, Inc.

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 certified that its decision is in conflict with C & S Crane Service, Inc. v. Negron, 287 So.2d 108 (Fla.3d DCA 1973), cert. denied, 296 So.2d 49 (Fla.1974). We have jurisdiction. Art. V, § 3(b) (4), Fla.Const.

In 1972, Zuckerman-Vernon Corporation was constructing an apartment project, not for another but for itself for subsequent sale by it in the form of condominium apartments.

Zuckerman-Vernon engaged May Plumbing Company to perform the plumbing work. May Plumbing contracted with L. C. Boggs Industries, Inc., for the performance of part of the work, the installation of catch basins in the project's drainage system.

Ronald Motchkavitz was an employee of May Plumbing Company. He was injured in the course of his employment and received worker's compensation benefits from his employer's insurance carrier. He then brought the present action alleging that his injuries were caused by the negligence of Theodore Faber, an employee of Boggs Industries. He sued Zuckerman-Vernon, Boggs Industries, and Faber.

Boggs Industries moved for summary judgment on the ground that it was immune from suit by virtue of the "exclusive remedy" provisions of the worker's compensation law. The trial court granted summary judgment and Motchkavitz appealed. Zuckerman-Vernon also appealed the judgment in favor of its co-defendant, based upon its adverse effect on Zuckerman-Vernon's right to contribution in case a judgment were eventually rendered against Zuckerman-Vernon.

The district court of appeal affirmed, holding that sections 440.10 and 440.11, Florida Statutes (1971), precluded an action to recover for injuries sustained on the job by the employee of a contractor against his employer's subcontractor. The district court framed the certified question as follows:

Can the employee of a "contractor," having received workmen's compensation benefits from his employer, sue his employer's subcontractor for damages arising out of the negligence of the latter's employee?

Section 440.10(1), Florida Statutes (1971), requires every employer brought within the provisions of chapter 440 to secure the payment of compensation to its employees as provided for by the statute. Where a contractor sublets part of his work to a subcontractor, the subcontractor's employees are deemed employees of the contractor for purposes of the statutorily required coverage and liability. "(T)he 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." § 440.10(1), Fla.Stat. (1971). 1

Section 440.11(1) provides that the liability of an employer as prescribed in section 440.10(1) "shall be exclusive and in place of all other liability of such employer to any third party tortfeasor and to the employee" and to any others damaged by the injury or death. The statute also provides that when an employer fails to secure payment of compensation as required, the injured employee or his representative may elect to claim statutory compensation or to maintain an action at law or in admiralty for damages on account of the injury or death. 2

Section 440.10 establishes the concept of "statutory employer" for contractors who sublet part of their work to others. Section 440.11 provides that the liability established in section 440.10 is "exclusive." The effect of section 440.10 is that where a subcontractor performing part of the work of a contractor fails to secure payment of compensation, the contractor is liable for same. If both subcontractor and contractor fail to secure coverage, then the contractor has an employer's liability to the subcontractor's injured employee for purposes of an action for statutory benefits or damages at law or in admiralty. Thus even when a subcontractor agrees to secure coverage for its employees, a prudent contractor will prepare for or insure against its contingent liability as "statutory employer" in case the subcontractor fails to do so.

The exclusiveness of liability provided for by section 440.11 extends to an employer's "liability" as defined in section 440.10. Thus a contractor who sublets part of its work to a subcontractor, being liable to secure coverage for employees of its subcontractor, is also immune from suit by such employees when such coverage has been secured. It is the liability to secure coverage for such employees in the event the subcontractor does not do so that immunizes a contractor from suit by such employees. Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954).

It was long ago held that the immunity of a contractor from suit by an employee of its subcontractor is reciprocal: a subcontractor is also immune from suit for damages by an employee of the contractor. In Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690 (1940), it was held that an employee of a contractor could not maintain an action against a subcontractor for injuries caused by the negligence of the subcontractor's employees because statutory benefits were the exclusive remedy. The Court reasoned that the statute created a "common employer" concept. It was unfair, the Court said, to hold that where two men were working shoulder to shoulder in a common enterprise, one of them, if injured, would have no remedy but the statutory benefits while the other might also have a right of action against some third party tortfeasor.

The question in Younger was whether the subcontractor whose employee caused the injury was a third party or "person other than the employer" as statutorily defined. The Court said:

The intention of the legislature ... was to abrogate the common law to the extent of making all of the employees engaged in a common enterprise statutory fellow-servants. They were never to be considered inter se third parties as to each other or to the immediate contractual employers. All workers engaged in such common enterprise were brought within the protection of the Workmen's Compensation Act where they might obtain equal benefits as provided by the act without the necessity of resorting to a common-law action to accomplish this result. We cannot garner any other meaning from the statute except that the employees of the sub-contractor and the general contractor were to be on an equal footing.

Id. at 341, 196 So. at 693.

The same rule has been applied to hold that an employee of a subcontractor, having received benefits as provided in the act, may not proceed against another subcontractor for negligence when both subcontractors are performing work on the same project for the same contractor. Miami Roofing & Sheet Metal Co. v. Kindt, 48 So.2d 840 (Fla.1950).

Petitioner contends that the statement in Jones v. Florida Power Corp., that immunity from suit is contingent upon and commensurate with liability to secure coverage, has undercut the rule of Younger and Miami Roofing. In neither of those cases could it be said, petitioner argues, that immunity was commensurate with liability since the immunized subcontractors were not liable for securing the coverage that provided the benefits for the injured workers.

We find this argument to be without merit. A subcontractor is statutorily recognized as a common employer along with the contractor even though it is not liable for securing coverage for the employees of the contractor and the other subcontractors. Carter v. Sims Crane Service, Inc., 198 So.2d 25 (Fla.1967). In Carter, it was held that an employee of a subcontractor could not proceed against another subcontractor for causing him injury where both subcontractors worked on the same project for the same contractor. Adhering to the rationale that "it is the liability for compensation under...

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