Pearson v. Harris

• Decision Date: 30 March 1984
• Docket Number: No. AT-68,WJKS-TV and G,AT-68
• Citation: 449 So.2d 339
• Parties: Karl S. PEARSON, Appellant, v. Michael J. HARRIS, d/b/a Ace Tower Company, Western World Insurance Company, Inc., Rustcraft Broadcasting Company, a wholly owned subsidiary of Rustcraft Greeting Cards, Inc., d/b/aencom, Inc., formerly known as Aztec Communications, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 339

449 So.2d 339

Karl S. PEARSON, Appellant, v. Michael J. HARRIS, d/b/a Ace Tower Company, Western World Insurance Company, Inc., Rustcraft Broadcasting Company, a wholly owned subsidiary of Rustcraft Greeting Cards, Inc., d/b/a WJKS-TV and Gencom, Inc., formerly known as Aztec Communications, Inc., Appellees.

No. AT-68.

District Court of Appeal of Florida,

First District.

March 30, 1984.

V. James Facciolo, Searcy & Facciolo, Jacksonville, for appellant.

Luke G. Galant, Dawson, Galant, Sulik, Levy & Ellis, Jacksonville, for appellee-Western World Ins. Co., Inc.

Karen K. Cole, Boyd, Jenerette, Staas, Joos, Williams & Felton, Jacksonville, for appellee-Rust Craft Broadcasting Co.

Peter J. Kellogg, Grissett, Humphries & Kellogg, Jacksonville, for appellee-Gencom, Inc.

SMITH, Judge.

Pearson appeals from a summary judgment in his personal injury action finding no liability on the part of defendants-appellees, Western World Insurance Co., Inc. (Western), Rustcraft Broadcasting Company (Rustcraft), and Gencom, Inc. (Gencom). ¹ We concur in the trial court's finding of no liability on the part of Western, which provided liability insurance coverage to Pearson's employer, Michael J. Harris, d/b/a Ace Tower Company (Ace Tower), because the doctrines of election of remedies and estoppel bar Pearson's claim that he was not an "employee," within the exclusionary provisions of Western's liability insurance policy issued to Ace Tower. As to Rustcraft and Gencom, we approve the trial court's determination of no liability because there are no facts upon which a jury could determine that either was guilty of negligence which caused or contributed to Pearson's injuries; and further, the theory of liability relied upon by Pearson, under which non-negligent parties employing an independent contractor for the performance of inherently dangerous operations are liable to persons injured thereby, does not apply to Rustcraft or Gencom with respect to injuries of an employee (Pearson) of the independent contractor (Ace Tower). Affirmed.

Rustcraft owned the WJKS television tower in Jacksonville. It leased space on the tower to Gencom, which provided beeper service to customers in the area. Gencom contracted with Ace Tower, owned by Michael J. Harris, to install an antenna on the tower. Appellant Pearson was engaged by Ace Tower to perform work connected with the installation. While working on the tower at about the 600 foot level, Pearson heard what sounded to him like a gunshot and a bullet whizzing past. In response, he returned to the ladder in the middle of the tower structure, and while making his descent down the ladder fell several hundred feet within the tower before his fall was broken by part of the metal framework. He sued Ace Tower, Rustcraft, and Gencom, and joined Ace Tower's liability insurer, Western, alleging that coverage was provided by Western's policy for Ace Tower's negligent conduct resulting in his injuries. In his complaint, Pearson alleged that because of the inherently dangerous nature of the work he was performing on the tower, Rustcraft owed a non-delegable duty to provide him with a safe place to work, also the duty to insure that such work was not performed on its tower without the use of appropriate safety devices, and further, that Rustcraft had the duty to warn of hidden or non-apparent dangers, such as the danger from sniper fire. He specifically alleged that Rustcraft breached its duties by failing to warn of the danger of sniper fire directed at persons working on the tower, claiming that Rustcraft knew of the existence of that danger or the "substantial risk" of sniper fire. He further alleged that Rustcraft breached its duties by failing to provide on the tower a means of connecting safety devices such as harnesses or nets. ²

As to Gencom, Pearson alleged that as a contractor of the ultra-hazardous work to be performed by him, it had a non-delegable duty to require its contractor to undertake the work in a reasonably safe manner, and to advise its contractor of any hidden or unusual non-apparent dangers on the job. He alleged that Gencom also was negligent in failing to advise him of the danger of sniper fire. ³

Turning first to the merits of Pearson's claim against Western, it is first noted that Western supported its motion for summary judgment by proving that prior to the filing of his negligence complaint, Pearson had filed a claim for workers' compensation benefits against Ace Tower in which Pearson claimed that he occupied the status of "employee" so as to be entitled to the benefits of the workers' compensation law. A final hearing was held and an order was entered, prior to the filing of the negligence complaint, in which the deputy commissioner determined that Pearson was an employee, and that Ace Tower was liable for the payment of workers' compensation benefits as his employer. By stipulation of the parties, the employee-employer relationship was the sole issue presented to and ruled upon by the deputy commissioner, with all claims for specific benefits and entitlements being reserved for further determination. Ace Tower took the position in the workers' compensation proceeding, as it did in the circuit court suit, that Pearson was, indeed, an independent contractor, not an employee of Ace Tower.

We have carefully examined the evidence of record tending to show that Pearson was an employee of Ace Tower. We find there was ample support for the deputy commissioner's finding that Pearson was an employee, but the purpose of our review here is to determine whether summary judgment could properly be entered on this issue in the circuit court litigation. In brief, there is no evidence that Pearson had done work for any employer other than Ace Tower near the time of injury. It was his normal custom to report directly to the home of Mr. Harris, Ace Tower's owner, on a daily basis, or on occasion to have Mr. Harris pick him up at his (Pearson's) residence. Pearson's work assignments were dictated by the needs of Ace Tower from day to day. In short, the evidence strongly indicates that Pearson was told where to go, what to do, and how to do it. Most of the tools used by Pearson in the performance of his duties were provided by Ace Tower, and he did not have the authority to hire additional labor. Pearson was paid at the conclusion of each job, but his pay was not pre-negotiated on a job-by-job basis. Although Pearson argues that there is a difference between an "employee" under the workers' compensation law, Section 440.02(2)(a), Florida Statutes, and an "employee" for the purposes of determining coverage under a liability insurance policy, we conclude that any discussion of such differences as might be pointed out with respect to specific categories of employment would be largely academic. In general, the criteria for determining whether the relationship is one of employer-employee, or contractee-independent contractor, under both the workers' compensation law and under the common law, are virtually identical. See, Florida Industrial Commission v. Schoenberg, 117 So.2d 538 (Fla.1960). As we said in Brewer v. Cueto, 379 So.2d 1322, 1323 (Fla. 1st DCA 1980), cert. den. 388 So.2d 1111 (Fla.1980), whether or not an individual is an independent contractor "ultimately turns on the power to control." See, also, Orcutt v. Environmental Technologists, 432 So.2d 701 (Fla. 1st DCA 1983). This court noted recently, in Saudi Arabian Airlines Corporation v. Dunn, 438 So.2d 116 (Fla. 1st DCA 1983), that at common law, the four elements considered in making a determination of whether a master and servant relationship exists are (1) the selection and engagement of the servant, (2) the payment of wages, (3) the power of dismissal, and (4) the control of the servant's conduct, and further, "... the essential element being the right of control and the right to direct the manner in which the work shall be done, the payment of wages being the least important factor." Id. at 120. Applying these criteria, we think there is little question that Ace Tower maintained full control of Pearson's work, although Mr. Harris' testimony to the contrary cannot be completely disregarded. Furthermore, the payment of wages criterion is not fully satisfied under the facts of the case before us, since Pearson was paid on a per-job basis, and his employer did not deduct withholding and social security taxes. A fact-finding tribunal could easily conclude, nevertheless, that any ambiguity with respect to the method of compensation would not be sufficient to overcome the existence of an employer-employee relationship based on the other, and more significant, criteria. In an abundance of caution, however, and in order to preserve the principle, reiterated in Saudi Arabian Airlines, supra (438 So.2d at 119), that the existence of an employer-employee relationship is normally one for the jury, we decline to hold that the record evidence compels a finding, as a matter of law, that Pearson was acting as an employee when injured. Instead, we base our decision on other grounds urged by Western.

We agree with Western's contention that...