State ex rel. Auchter Co. v. Luckie
| Decision Date | 18 September 1962 |
| Docket Number | No. D-431,D-431 |
| Citation | 145 So.2d 239 |
| Parties | STATE of Florida, on the relation of the AUCHTER COMPANY, a corporation, Relator, v. Charles A. LUCKIE, as Judge of the Circuit Court of Duval County, Florida, and Robert C. Swain, Respondents. |
| Court | Florida District Court of Appeals |
Barnes & Slater, Jacksonville, for relator.
Carl G. Swanson and Evan T. Evans, Jacksonville, for respondents
Relator has filed its suggestion for issuance of a writ prohibiting respondent Honorable Charles A. Luckie, as Judge of the Circuit Court of Duval County, from continuing to exercise jurisdiction in a civil action instituted in that court by respondent Robert C. Swain against the Auchter Company. The action sought to be prohibited is for the recovery of damages arising from personal injuries suffered by Swain as a result of Auchter's negligence. Relator contends that the Workmen's Compensation Act of this State provides the exclusive remedy for recovery of such compensation to which Swain is entitled as a result of the injuries suffered by him, and that the Circuit Court of Duval County is without jurisdiction to maintain the action.
The undisputed facts present in the record before us reveal the following situation. The Auchter Company is a domestic corporation and a licensed general contractor engaged in the building and construction industry. It entered into a contract with Sav-A-Stop, Inc., a corporation, by which Auchter agreed to construct on land owned by it an office building and warehouse in accordance with plans and specifications prepared by an architect and agreed upon by the parties. Under the terms of this agreement Sav-A-Stop bound itself to lease the completed improvements from Auchter for a stipulated monthly rental over a stated period of time. Auchter commenced construction of the building and warehouse contemplated by its agreement with Sav-A-Stop, and in this connection utilized its own equipment and personnel consisting of more than three employees. In accordance with the applicable provisions of law Auchter procured workmen's compensation insurance covering all its employees engaged in the work. Auchter entered into a written contract with Florida Steel Corporation by which the latter agreed to furnish and erect the structural steel required by the plans and specifications prepared for construction of the building and warehouse. This document refers to Auchter as the general contractor and to Florida Steel Corporation as the sub-contractor. Florida Steel employed more than three persons in the discharge of its obligations under its contract with Auchter and in accordance with the applicable provisions of law procured workmen's compensation insurance covering all of its employees, including Swain. In addition, and apparently as a precautionary measure, Auchter procured an additional insurance policy providing workmen's compensation benefits to all workers employed in the construction of the improvements by whomever employed, including the employees of Florida Steel. Swain, while acting in the scope of his employment, was injured as a result of the alleged negligence of Auchter. He received and accepted the benefits to which he was entitled under the Workmen's Compensation insurance policy held by his employer, Florida Steel. He subsequently brought suit in the Circuit Court of Duval County against Auchter, charging the latter as a third party tort feasor with negligence which proximately caused the injuries suffered by him. It is the continuance of that action which Auchter now seeks to prohibit by the petition filed in this court.
The pertinent statute which controls our decision is Section 440.10, F.S.A., which provides as follows:
From the facts recited above it seems apparent that Auchter, as the primary employer of all persons directly employed by it in the construction of the improvement under consideration, was required by the first sentence of the above quoted section of the statute to secure the payment to its employees of the compensation provided by the Act. The crucial question posed for our decision is whether under the facts of this case Auchter is the statutory employer of those persons employed by Florida Steel Corporation. The answer to this depends on whether Auchter can be held to be a contractor, and Florida Steel a subcontractor, within the purview of the above quoted section of the statute. If so, then the Workmen's Compensation Act provides the exclusive remedy against Auchter for the injuries sustained by Swain, and the Circuit Court would have no jurisdiction of the action now pending before it. Under these circumstances a writ of prohibition against maintenance of the suit would properly lie. 1
It seems clear from the facts in this case that Auchter occupies the position of primary employer and owner of the land and the improvements sought to be constructed thereon. The fact that it is also a licensed general contractor engaged in the construction industry would appear to be of no importance, and has no controlling effect upon the interpretation to be placed upon the pertinent statute under consideration. In order for Auchter to be considered a contractor within the meaning and intent of the statute it would have to be bound by a contractual obligation to build for some third party the improvements which were in the process of construction at the time Swain was injured. By the same token Florida Steel could not be held to be a subcontractor within the meaning of the statute unless it can be established that Auchter passed on to Florida Steel an obligation under a contract for which Auchter was primarily obligated. 2
Auchter contends in this proceeding that it comes within the definition of 'contractor' as contained in the pertinent statute for the reason that it was under a written contract with Sav-A-Stop to construct the office building and warehouse in accordance with agreed plans and specifications prepared by an architect. The primary purpose and legal effect of the contract in question is to create a relationship of landlord and tenant whereby Auchter, as owner and landlord of the improvements yet to be constructed, would lease the property to Sav-A-Stop, as tenant, and that the latter would occupy the premises and pay an agreed rental over a stated period of years. Auchter's obligation to construct the building and warehouse was merely incidental to the primary purpose of the contract. This is not the type of contractual obligation contemplated by the statute. In West v. Sampson 3 our Supreme Court indicated, if it did not specifically so hold, that the type of contractual obligation by which one must be bound in order to be held a contractor within the meaning of the statute is the conventional type of contract entered into between a general contractor and an owner of property for whose benefit improvements are to be constructed or specified work is to be performed, by which the contractor agrees for a stated consideration to construct an improvement or perform the work in accordance with agreed plans and specifications.
From the facts shown by this record we are compelled to hold that under the above quoted statute Auchter must be held to be an owner and primary employer, and that Florida Steel is an independent contractor engaged for the specific purpose of performing one identifiable phase of the work.
In the Floyd case 4 an owner of a building sought to construct an addition thereto without employing a general contractor to perform the work. A part of the construction was contracted to an independent contractor. It was there held that an employee of the owner who was injured as a result of negligence of the independent contractor could maintain against the latter a common law action in tort for recovery of the damages suffered by him as a result of such negligence. This decision was in conformity with the holding of that court in the earlier case of Cromer v. Thomas, in which the same conclusion was reached upon substantially the same facts. 5 Since it has been held that an employee of an owner may maintain an action at law against an independent contractor for injuries sustained as a result of the negligence of such independent contractor, it would follow that an employee of an independent contractor may maintain against an owner an action at law for damages suffered as a result of the latter's negligence. 6 That is the situation we find to be present in the case we now review.
In the case of West v. Sampson, supra, a licensed general contractor and a corporation in which he was not interested each owned an undivided one-half interest in a parcel of land. The corporation conveyed its interest in the land to the contractor in accordance with an agreement whereby the latter agreed to construct on the land a dwelling house which would immediately be placed on the market and sold. It was agreed that the corporation would be paid for its one-half interest in the land out of the proceeds of the sale after the dwelling was completed and sold. The contractor employed no personnel of his own but entered into separate...
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