Palm Beach County v. Kelly, 4D01-2251.

• Decision Date: 06 March 2002
• Docket Number: No. 4D01-2251.,4D01-2251.
• Citation: 810 So.2d 560
• Parties: PALM BEACH COUNTY, Appellant, v. Kevin KELLY and Carol Kelly, his wife, Appellees.
• Court: Florida District Court of Appeals

810 So.2d 560

PALM BEACH COUNTY, Appellant, v. Kevin KELLY and Carol Kelly, his wife, Appellees.

No. 4D01-2251.

District Court of Appeal of Florida, Fourth District.

March 6, 2002.

Christopher J. DeLorenzo, Assistant County Attorney, Palm Beach County Attorney's Office, West Palm Beach, for appellant.

Randy D. Ellison and Brian D. Guralnick, West Palm Beach, for appellees.

TAYLOR, J.

Palm Beach County ("County") appeals from a partial summary judgment ruling that the unrelated works exception applies to its affirmative defense of workers' compensation immunity. We affirm.

Kevin Kelly, a County employee, was driving home from work when he was allegedly struck by a motor vehicle driven by Rostant E. John, also a County employee. Kelly works as a maintenance equipment operator for the maintenance division at the Palm Beach International Airport. As part of his job, Kelly operates equipment for the airport maintenance division, including the large sweepers used to clean the airport's roadways and taxiways and the tractor mowers used to cut the airfield's grassy areas. Kelly also operates front-end loaders and dump trucks as needed. At the beginning of each day, he reports to work at 3700 Belvedere Road, Building G, which is the main office for the maintenance department.

Rostant John works as an equipment mechanic for the County's Fleet Management Division, which is located at 3700 Belvedere Road, Building D. John maintains and operates heavy equipment, such as tractors, dozers, front-end loaders, trucks, and other motor vehicles for the County. Although John is occasionally assigned to make "on the road" repairs at designated locations, his main job each day is to pick up his county truck from a shop on Belvedere and drive to the County's shell rock pit in Boca Raton. At the shell rock pit, John maintains and repairs the excavation equipment used to dig up shell rock. The shell rock is used for building and maintaining county roads.

The automobile accident at issue occurred off Belvedere Road, near the county buildings where Kelly and John report. At the time of the accident, Kelly had just finished his work shift and was on his way home in his own car.¹ John was leaving the Belvedere Road location in his service truck and was acting within the scope of his employment.

After the accident, Kelly began receiving workers' compensation benefits. He later brought a claim against the County for personal injuries resulting from the accident. Both parties filed cross motions for summary judgment on the workers' compensation immunity issue. Kelly maintained that his suit was not barred by workers' compensation immunity because the two men were involved in unrelated works. The trial court agreed and granted Kelly's motion for partial summary judgment. The County appeals this ruling.

"The Florida Workers' Compensation Act provides for the payment of compensation benefits whenever disability or death results from an injury arising out of and in the course of employment." Sch. Bd. of Broward County v. Victorin, 767 So.2d 551, 552 (Fla. 4th DCA), rev. denied, 786 So.2d 581 (Fla.2001). The act further provides that workers' compensation is the exclusive remedy, save for some legislatively created exceptions. § 440.11, Fla. Stat. (1997). Section 440.11(1) states:

(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, 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 the legal representative thereof 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 employee, that the employee assumed the risk of the

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