Stevens v. International Builders of Fla., Inc.

• Decision Date: 20 February 1968
• Docket Number: No. 67--84,67--84
• Citation: 207 So.2d 287
• Parties: William G. STEVENS, Appellant, v. INTERNATIONAL BUILDERS OF FLORIDA, INC., a Virginia corporation, Appellee.
• Court: Florida District Court of Appeals

Page 287

207 So.2d 287

William G. STEVENS, Appellant, v. INTERNATIONAL BUILDERS OF FLORIDA, INC., a Virginia corporation, Appellee.

No. 67--84.

District Court of Appeal of Florida, Third District.

Feb. 20, 1968.

Rehearing Denied March 13, 1968.

Stephens, Demos & Magill, Miami, for appellant.

Leo M. Alpert, Miami, for appellee.

Before PEARSON, BARKDULL and HENDRY, JJ.

HENDRY, Judge.

William G. Stevens, who was the plaintiff below, appeals an order of the trial court granting summary final judgment in favor of the defendant, International Builders of Florida, Inc.

According to the undisputed facts of the case, International Builders was under contract with the United States government to construct certain hangar facilities at the Naval Air Station at Boca Chica, Florida. Pursuant to this general contract, International Builders entered into a subcontract with William G. Stevens, who was to install water distribution and sewer systems. Although the name 'W. G. Stevens Engineering Co.' appeared on the subcontract, Stevens was neither incorporated nor a member of any partnership. Stevens and his two employees, Sanders and Griffee, performed the work on the project. Having fewer than three employees, Stevens was not required under the Florida Workmen's Compensation Act, § 440.01 et seq., Fla.Stat., F.S.A., to carry workmen's compensation insurance. However, by the terms of the subcontract with International Builders, Stevens agreed to obtain workmen's compensation insurance coverage for his employees. The record on appeal indicates that the only insurance actually carried by Stevens was a small public liability policy. International Builders certified to the Department of the Navy, Bureau of Docks and Yards, that it was insured through Robert F. Coleman of Florida, Inc., in compliance with the Workmen's Compensation Act, supra.

On May 24, 1965, Stevens was at work on the job site when he was struck and injured by a truck, driven by an employee of International Builders. The employee was operating the truck which was owned by International Builders, within the scope of his duties and with the knowledge and consent of his employer.

Stevens filed his complaint against International Builders, alleging negligence. International Builders answered and asserted as an affirmative defense that Stevens was an employee of W. G. Stevens Engineering Co., a subcontractor, and that as such, plaintiff's sole and exclusive remedies are those provided under the Workmen's Compensation Act. At pretrial conference, it was agreed between the parties that this defense should be ruled upon before trial, and the trial judge then granted summary final judgment in favor of the defendant, holding the defense to be a valid one. Plaintiff now seeks appellate review of the order granting summary judgment.

It is the unassailable rule that if appellant falls within the purview of the Florida Workmen's Compensation Act, his remedies for the injuries suffered are exclusively as provided therein. § 440.11, Fla.Stat., F.S.A., reads:

'440.11 Exclusiveness of Liability.

'The liability of an employer prescribed in § 440.10 shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter an injured employee, or his legal representative, in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.'

The issue here presented, then, resolves itself into the question of whether appellant is one of that class of persons who come within the scope of the statute.

In determining that issue, we again resort to the provisions of the Workmen's Compensation Act. It is manifest that by its very nature, the statute contemplates an existing employer-employee relationship. § 440.02(2), Fla.Stat., F.S.A., defines 'employee'.

'(a) 'Employee' means every person engaged in any employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also including minors whether lawfully or unlawfully employed.

'(b) * * *

'(c) The term 'employee' shall not include:

'1. Independent contractors; or '2. Persons whose employment is both casual and not in the course of the trade, business, profession or occupation of the employer.'

Under the facts of this case, there are but two ways in which Stevens might be considered to be employed as the term is defined in the statute.

We are of the opinion that the appellant was not the employee of the general contractor, International Builders of Florida, Inc. A decision as to the existence or nonexistence of an employer-employee relationship must depend upon the facts of each particular case. Magarian v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858 (1941). However, the Florida courts have adopted a number of tests, as formulated by 1 Restatement of the Law, Agency (2nd ed.) § 220, to aid in making a distinction between employee and independent contractor. See Cantor v. Cochran, Fla.1966, 184 So.2d 173; Miami Herald Publishing Co. v. Kendall, Fla.1956, 88 So.2d 276; and, Magarian v. Southern Fruit Distributors, supra. Among the tests to be used are:

'(a) The extent of control which, by the agreement, the master may exercise over the details of the work.

'(b) Whether or not the one employed is engaged in a distinct occupation or business.

'(c) The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.

'(d) The skill required in the particular occupation.

'(e) Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work.

'(f) The length of time for which the person is employed.

'(g) The method of payment, whether by time or by the job.'

and,

'(h) Whether or not the work is a part of the regular business of the employer.'

Of these, the primary test is the exercise or right to exercise direction and control by the employer over the employee. Goldstein v. Gray Decorators, Inc., Fla.1964, 166 So.2d 438; City of Boca Raton v. Mattef, Fla.1956, 91 So.2d...