San Marco Co., Inc. v. Langford

• Decision Date: 16 December 1980
• Docket Number: No. SS-244,SS-244
• Citation: 391 So.2d 326
• Parties: SAN MARCO COMPANY, INC.; Liberty Mutual Insurance Co., Appellants, v. Barney Louis LANGFORD, Appellee.
• Court: Florida District Court of Appeals

Page 326

391 So.2d 326

SAN MARCO COMPANY, INC.; Liberty Mutual Insurance Co., Appellants, v. Barney Louis LANGFORD, Appellee.

No. SS-244.

District Court of Appeal of Florida, First District.

Dec. 16, 1980.

Bernard J. Zimmerman and Jose R. Rodriguez of Akerman, Senterfitt & Eidson, Orlando, for appellants.

John DeM. Haines of Winderweedle, Haines, Ward & Woodman, P. A., Winter Park, for appellee.

PER CURIAM.

The employer/carrier appeals the order of the deputy commissioner finding that the claimant, on September 12, 1978, suffered a compensable accident arising out of and in the course of his employment when he was shot during working hours on the employer's premises by a fellow employee.

The claimant is a dragline operator who lived in the assailant's home when he was working in the Orlando, Florida area. On the evening prior to the shooting, the claimant and his assailant, Edward Meeks, had dinner together at which time Meeks, who was in a belligerent mood, expressed dissatisfaction with his employers and accused the claimant of owing him rent. The claimant paid for both meals, and waited for Meeks in his truck. Meeks came out of the restaurant, got into the truck, got back out of the truck, walked to the rear of a building and disappeared into the night. The claimant next saw Meeks moments before he was shot. Ronald Culpepper, the employer's foreman, testified that on the morning of the 12th, Meeks called in to report that he would not be in to work that day. Later, however, he was seen by Culpepper approaching the building with a shotgun. Culpepper, who had been made aware of the previous evening's argument, told the claimant to go out the back door. Meeks called the claimant by name twice and shot him as he attempted to leave. Other employees sitting around in the office left leaving Culpepper and Terry Wallace facing Meeks. Wallace took flight giving Culpepper an opportunity to throw a fan at Meeks. A scuffle ensued and Culpepper gained control of the gun. It was at this point that Meeks told Culpepper that he had another gun and that he was going to get him. Meeks later told Deputy Sheriff Fred Mack who investigated the shooting that the claimant owed him money and had drawn a knife on him. He stated that he would kill anyone who drew a knife on him and that it was his intention to blow the claimant's brains out, if he could.

First off, we agree that the claimant was not the aggressor. This, however, is not the deciding factor for there remains the question of whether the shooting arose out of the employment. Professor Larson, ¹ in his treatment of the subject states:

When the animosity or dispute that culminates in an assault is imported into the employment from claimant's domestic or private life, and is not exacerbated by the employment, the assault does not arise out of the employment under any test.

When it is clear that the origin of the assault was purely private and personal, and that the employment contributed nothing to the episode, whether by engendering or exacerbating the quarrel or facilitating the assault, the assault should be held noncompensable even in states fully accepting the positional-risk test, since that...