Smith v. Ussery, 40803

• Decision Date: 29 March 1972
• Docket Number: No. 40803,40803
• Citation: 261 So.2d 164
• Parties: Jerry E. SMITH, Petitioner, v. Alvin USSERY and Aubrey Ussery, d/b/a Ussery Cement Finishing Company, Respondents.
• Court: Florida Supreme Court

Page 164

261 So.2d 164

Jerry E. SMITH, Petitioner, v. Alvin USSERY and Aubrey Ussery, d/b/a Ussery Cement Finishing Company, Respondents.

No. 40803.

Supreme Court of Florida.

March 29, 1972.

Rehearing Denied May 12, 1972.

Stanley Epstein, of Mamber, Gopman, Epstein & Miles, North Miami Beach, for petitioner.

David L. Willing, of Adams, George & Wood, Miami, for respondents.

DEKLE, Justice.

Misapplication of a valid legal principle has erroneously denial recovery to an employee in his action for negligence against a separate contractor on the same construction job. The recognized theory adopted as applying, was that which limits employees working "under a common employer in a common enterprise ("statutory fellow servants") to the exclusive remedy of workmen's compensation under Fla.Stat. § 440.11, F.S.A. The "common employer" section of the statute is set forth in § 440.10(1), ¹ and has been correctly used in Miami Roofing & Sheet Metal Co. v. Kindt, 48 So.2d 840 (Fla.1950); May v. J.M. Montgomery Roofing Co., 158 So.2d 147 (3d DCA Fla.1963); Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690 (Fla.1940).

The same principle was sought to be applied in Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954), but was denied in a well-reasoned opinion there by Chief Justice Roberts who was then in the second of his record three terms as Chief Justice of this Court. The same factual situation appears in the present case in which the lower court has misapplied the "common employer" principle, as in Jones, which was affirmed by the Third District at 242 So.2d 878, thus presenting conflict and jurisdiction here. Fla. Const. art. V, § 4(2), F.S.A. ²

The clarity of reasoning of Chief Justice Roberts (who also authored Miami Roofing, supra) is reflected in the following quote from Jones, supra, at pp. 288-289 (referring in part to Pimental v. John E. Cox Co., 299 Mass. 579, 13 N.E.2d 441, 444):

" 'While the work on which the independent contractors and their employees were engaged might well be described as a common job, there was no "common employer" ...' "

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"We agree with the Massachusetts court that the mere fact that the plaintiff and Burns' employee were working on the same general project does not make them employees of a 'common employer' ... And, as heretofore noted, if there was no liability as an employer under the Act, there was no immunity from suit as a third-party tortfeasor. Nor can the Corporation [owner] be considered a 'contractor,' (and thus the 'statutory' employer of Burns' and Grinnell's employees) within the meaning of Section 440.10 quoted supra, since the clear implication in this part of the Act is that there must be a contractual obligation on the part of the contractor, a portion of which he sublets to another. To 'sublet' means to 'underlet', Webster's New International Dictionary; in the context in which it is here used, the effect of subletting is to pass on to another an obligation under a contract for which the person so 'subletting' is primarily obligated. The Corporation, under the facts here present, had no primary obligation under a contract which it was passing on to another. It was not, then, a 'contractor' within the meaning of the Act."

The clear distinction on the obtaining of workmen's compensation is set forth in Jones at p. 287 as follows:

"The fact that the Corporation [owner there] in its contracts with Grinnell and Burns required them to provide workmen's compensation for their employees is indeed commendable but is irrelevant to a determination of the question here presented. The question is whether the Workmen's Compensation Act imposed upon the Corporation the duty, as an 'employer' and 'contractor' to secure compensation for such employees. It is the liability to secure compensation which gives the employer immunity from suit as a third party tortfeasor. His immunity from suit is commensurate with his liability for securing compensation--no more and no less." (emphasis supplied)

In Jones, we reversed the summary judgment on behalf of defendants for the same reason it must be reversed here; namely, that the defendants were not factually in the common employer position to defeat the action, despite the actual existence of compensation coverage. As stated in Jones above, it is the requirement under the act to secure coverage which extends the "common employer" immunity; it is NOT the mere fact that each of the several contractors may have separately had workmen's compensation for its employees; nor that the alleged "contractor", Mr. Cecil Flesher, "put the workmen that were involved on a daily basis on my existing Workmen's Compensation Policy" as a "part of my over-all employees," the premium for which was paid by the hospital and which policy "did not cover subcontractors' employees."

The exclusionary rule here sought to be invoked, does not apply where the only privity of contract or obligation to perform work by such alleged subcontractors was with the owner or its agent and where the true relationship of contractor and "subs" does not exist; for that is the very predicate for the exclusion expressly set forth in the statutory provision § 440.10(1). See footnote 1.

It is apparent then that the necessary privity or relationship among those involved must be present and it is not accomplished by an owner simply naming someone as "general contractor" if there is in fact not such a relationship and such "general contractor" does not actually function as general contractor and does not enter into subcontracts on the job involved. Here the facts show the lack of the necessary privity or relationship.

In the construction of a Hialeah hospital annex the hospital was, in effect, (and perhaps for the commendable purpose of saving money) conducting a construction job itself,...