Sherrill v. Corbett Cranes Services, Inc.

• Decision Date: 05 May 1995
• Docket Number: No. 94-81,94-81
• Citation: 656 So.2d 181
• Parties: 20 Fla. L. Weekly D1112 William SHERRILL, Linda R. Sherrill, a minor, and Scottie R. Sherrill, a minor, Appellants, v. CORBETT CRANES SERVICES, INC., a Florida corporation, and Seabreeze Operators, Inc., etc., Appellees.
• Court: Florida District Court of Appeals

Page 181

656 So.2d 181

20 Fla. L. Weekly D1112

William SHERRILL, Linda R. Sherrill, a minor, and Scottie R Sherrill, a minor, Appellants, v. CORBETT CRANES SERVICES, INC., a Florida corporation, and Seabreeze Operators, Inc., etc., Appellees.

No. 94-81.

District Court of Appeal of Florida,

Fifth District.

May 5, 1995.

Rehearing Denied June 21, 1995.

W.M. Chanfrau, of Chanfrau & Chanfrau, Daytona Beach, and Philip M. Burlington, of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellants.

Gary M. Hellman, of Kroll & Tract, Miami, for appellees.

GRIFFIN, Judge.

William Sherrill and his two minor children, Linda R. Sherrill and Scottie R. Sherrill (collectively "the Sherrills") appeal a summary final judgment entered in favor of Corbett Crane Services, Inc. ("Corbett") and Seabreeze Operators, Inc. ("Seabreeze").

Foley & Associates Construction Company, Inc. ("Foley") was the general contractor for the Marina Point Condominiums in Daytona Beach, Florida. In the course of construction, Foley rented a number of cranes from Corbett. The purchase order signed by Corbett required it to:

Furnish rental of crane of size and type as required with operator, including fuel, maintenance, standard rigging, block forks, concrete buckets and material slings.... [Emphasis added.]

Pursuant to this agreement, Corbett provided Foley with a thirty-ton crane and an operator named William English, who was employed by Seabreeze, an affiliate of Corbett. English worked on the job site without incident for six to eight weeks. However, on February 28, English was ordered to lift, by crane, a number of cement buckets, each weighing approximately 3,200 pounds, to the third floor of one of the buildings. After being told that Foley had already compacted the ground, English backed the crane up to the building. He and Foley's foreman, Dennis Wilson, then extended the four outriggers used to stabilize the crane. They also put "cribbing" under the outriggers for added stability. English completed a test extension of the crane and then began to "fly" a 3,200 pound bucket of cement 100 feet in the air, which he claims was well within the weight and extension capacities for this crane. During the course of the first lift, however, one of four outriggers used to stabilize the crane sank into the ground, causing the crane to "tilt" and the bucket attached to the crane to swing. Although English tried to power the load to the ground, it nonetheless continued to swing. Sherrill, a construction worker employed by Foley, was hit in the back with the bucket as it swung, sustaining severe injuries.

Sherrill received workers' compensation benefits from his own employer, Foley. He and his two minor children then brought this action against Corbett and Seabreeze for the negligent operation or maintenance of the crane.

Corbett and Seabreeze moved for summary judgment on the basis of the borrowed servant doctrine and worker's compensation immunity. Corbett asserted as the sole basis for its motion that English was a borrowed servant of Foley because it was controlling him with hand signals at the time of the accident and argued that it therefore was relieved from liability under the worker's compensation statutes. Deposition excerpts attached to the motion established that English frequently needed a "flag man" to direct him with his lifts and that he was using a Foley employee as his "flag man" at the time of the incident. The court granted the motion for summary judgment without explanation. We reverse.

The key issue on appeal is whether English, Corbett's crane operator, was, as a matter of law, a borrowed servant of Foley thereby making him a fellow servant of Sherrill. We agree with Sherrill that this is a question of fact and summary judgment was improper.

It should initially be noted that had Corbett simply leased the crane to Foley, it would clearly be immune from liability under the worker's compensation statutes since its purported liability under these circumstances would be based solely on the "dangerous instrumentality" doctrine. Florida has long recognized that a worker injured by a leased dangerous instrumentality operated by a fellow worker is limited to no more recovery than that permitted by the worker's compensation statutes. Morales v. Ryder Truck Rental, 559 So.2d 317 (Fla. 3d DCA), review denied, 574 So.2d 142 (Fla.1990); Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla.1966)c.

By contrast, in this case, by leasing both the crane and an operator to Foley, Corbett may have become either a subcontractor or an independent contractor with respect to Foley. It is now well established under Florida law that a subcontractor or independent contractor can be liable in tort for injuries sustained by the employees of a general contractor on a construction site. Employers Ins. of Wausau v. Abernathy, 442 So.2d 953 (Fla.1983).

Corbett urges that since its crane and its operator, English, were "leased" to Foley, English thereby became Foley's borrowed servant, and Corbett was relieved of liability under the worker's compensation statutes. It relies mainly on Halifax Paving, Inc. v. Scott & Jobalia Construction Co., Inc., 565 So.2d 1346 (Fla.1990), in which a crane company which had lent a crane and operator to a general contractor had been sued for negligence by an employee of the general contractor. The crane company settled with the general contractor's employee and then brought an action against the general contractor for common-law indemnity, based on the theory that it should be indemnified because their liability was based solely on its ownership of the crane--a vicarious, derivative kind of liability--and any active negligence which caused the accident was solely attributable to the general contractor. In agreeing with this court that the crane company's payment to the injured employee had been voluntary and that an action for indemnity would not lie, the Florida Supreme Court said:

Florida has long recognized the "borrowed servant" rule. See Postal Telegraph & Cable Co. v. Doyle, 123 Fla. 695, 167 So. 358 (1936). Under this rule, one who borrows and exercises control over the servant or worker of another in effect assumes all liability for the activities of the borrowed servant or worker. Id. We believe the record contains substantial competent evidence to show that the crane operator became a "borrowed servant" within the definition of that term provided in Shelby Mutual Insurance Co. v. Aetna Insurance Co., 246 So.2d 98, 101 (Fla.1971).

Similarly, this Court established in Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla.1966), that a worker injured by a leased dangerous instrumentality operated by a fellow worker is limited to no more recovery than that permitted by the worker's compensation statutes. The central rationale of Smith is that leased equipment on a job site in effect has become the working tool of the employer. Id. at 424. Thus, the exclusivity principle of worker's compensation comes to bear. See Sec. 440.11, Fla.Stat. (1987).

* * * * * *

The point of both Smith and our opinion here is that, while the third party certainly had no duty to provide worker's compensation to the injured party, neither did the third party in any logical sense contribute to the workplace injury that actually occurred. In both logic and fairness, the injury here and in Smith was a work-place injury occurring as a result of a dangerous instrumentality in the control of the employer. This conclusion is only underscored by the fact that the jury agreed with Halifax that any active negligence was attributable to S & J. When this is the case, the exclusive remedy is worker's compensation.

Id. at 1347.

Halifax suggests, without deciding, that a crane company that hires out a crane and operator to a general contractor is immune from tort actions by injured employees of the general contractor because the crane company's operator is considered a special employee or borrowed servant of the general contractor. ¹ At least one court, in Larzelere v. Employers Ins. of Wausau, 613 So.2d 510 (Fla. 2d DCA), review denied, 624 So.2d 267 (Fla.1993), has applied Halifax Paving to conclude that a crane company which had leased a crane and operator to a builder was immune from suit by one of the builder's employees who was injured when shorejacks being raised by the crane operator fell and hit him. When the accident occurred, the builder's employees had seated the load on the hook and were directing the operator with hand signals. The court decided that the crane company was immune from liability in negligence based on the worker's compensation statutes, stating:

The trial court granted summary judgment on the ground that suit against KBH and Ward was barred by the exclusive remedy provision of section 440.11, Florida Statutes, the workers compensation statute. The trial court concluded that, as in Halifax Paving v. Scott & Jobalia Construction Co., Inc., 565 So.2d 1346 (Fla.1990), the crane had become a workplace tool of Enterprise. See Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla.1966). When a dangerous instrumentality is leased to an employer, the lessor shares the employer's worker's compensation immunity from suit by employees. Morales v. Ryder Truck Rental, 559 So.2d 317 (Fla. 3d DCA 1990). The crane operator, acting under Enterprise's direction, became Enterprise's borrowed servant.

Id. at 511. Halifax Paving makes it clear, however, that the question of whether the employee operating the equipment is to be considered a borrowed servant must be decided in accordance with the principles established in Shelby Mutual Insurance Co. v. Aetna Insurance Co., 246 So.2d 98, (Fla.1971).

In Halifax Paving, the court held that the record supported the jury finding that the crane operator in that case was a borrowed servant. Id. at 1347. Similarly, in Postal Telegraph & Cable Co. v. Doyle, 123 Fla. 695, 167 So....