Vallejos v. Lan Cargo S.A.

Citation116 So.3d 545
Decision Date19 June 2013
Docket NumberNo. 3D12–1259.,3D12–1259.
PartiesErnesto VALLEJOS, as Personal Representative of the Estate of Ernesto Vallejos, Deceased, Appellant, v. LAN CARGO S.A., and Infinity Cargo Services, Inc., Appellees.
CourtCourt of Appeal of Florida (US)

OPINION TEXT STARTS HERE

Bennet Lapidus, New Jersey; Sallato & Associates and Maria Teresa Sallato, Miami, for appellant.

Fowler White Burnett and Esther E. Galicia and J. Michael Pennekamp, Miami, for appellee Lan Cargo, S.A.; Cole Scott & Kissane and Scott A. Cole and Anne Sullivan Magnelli, Miami, for appellee Infinity Cargo Services, Inc.

Before WELLS, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.

CORTIÑAS, J.

Ernesto Vallejos worked for Professional Aviation Management, Inc., a subcontractor that supplied personnel to general contractor Lan Cargo, S.A., the owner of the warehouse at Miami International Airport. Infinity Cargo Services, Inc., was another subcontractor that supplied personnel to Lan. Vallejos was a forklift operator. His duties did not include taking hoppers (small dumpsters) outside to dump in a larger dumpster. On the day of his accident, Vallejos was asked to do so by Pablo Robaina, an Infinity employee. Robaina was not Vallejos' supervisor. Robaina did not have the security clearance necessary to go out and dump the hopper himself. Robaina showed Vallejos how to dump the hopper using a makeshift rope that allowed the operator to dump the hopper from the cab of the forklift so that the operator did not have to exit the forklift. The rope did not come attached to the hopper but was added later by employees at the warehouse. As Vallejos was returning the hopper, the hopper started to move around. Vallejos wrapped the rope around his hand to steady it. The unattached end of the rope was long and dragged on the ground. It got wrapped around one of the forklift's tires and jerked Vallejos out of the cab and onto the ground. He suffered minor shoulder and back injuries, but four fingers had to be amputated. He also suffered some psychological injuries and was unable to return to work. Vallejos applied for workers' compensation benefits. He settled his workers' compensation case with Professional and its carrier and signed a broad release.

Two years later, he filed the instant case against Lan and Infinity (appellees). He alleged two counts of negligence and gross negligence against each and one count of intentional tort against Lan.1 In general, Vallejos alleged that appellees wrongly modified the hopper, failed to provide adequate safeguards and warnings,2 and should not have asked him to dump the hopper because he was not trained. Additionally, Vallejos argues that Robaina did not properly instruct Vallejos how to dump the hopper.

The trial court granted summary judgment in favor of the appellees after a hearing. The trial court reasoned that Vallejos had elected the remedy afforded by the workers' compensation statutes and had not shown that a genuine issue of material fact existed to support a case against the appellees based on exceptions to the workers' compensation statute. This appeal followed.

ANALYSIS

Workers' compensation immunity applies to all statutory employers, such as Lan, and subcontractors that provide services in conjunction with a contractor on the same project, such as Infinity. Fla. Stat. §§ 440.10–.11 (2003). Vallejos argues that Lan and Infinity are not immune because he did not elect workers' compensation as his remedy.3

Vallejos argues that even if he did elect his remedy, the following exceptions to workers' compensation immunity apply: 1) Lan committed an intentional tort, 2) Robaina, his fellow-employee, was grossly negligent, 3) Robaina was negligent while operating in the furtherance of the same employer's business but assigned primarily to unrelated works, and 4) Infinity, a subcontractor that shares statutory immunity under section 440.10, was grossly negligent. Fla. Stat. §§ 440.10–.11. All of Vallejos' arguments fail; therefore, the trial court properly granted summary judgment as to all of these counts.

This Court's standard of review is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

I. Vallejos elected workers' compensation as his remedy; therefore, Lan and Infinity are entitled to workers' compensation immunity as to Vallejos' negligence claims.

Vallejos argues that he did not express a conscious intent to elect workers' compensation as his remedy and that his case did not reach a conclusion on the merits. Therefore, he argues, he did not elect his remedy. The cases which examine whether a plaintiff evinces a conscious intent to elect a remedy or whether a case reaches a conclusion on the merits can be divided into two groups: 1) cases where compensability or the injured party's status as an employee is at issue and 2) cases where the defendant claims that liability under an exception to the statute was either waived or resolved in the workers' compensation case. Neither of these circumstances apply in the instant case.

a. Compensability is not an issue.

Vallejos elected his remedy by filing a petition for benefits, receiving payments, and negotiating a settlement. All of the following cases that Vallejos cites can be distinguished because they deal with workers' compensation claims where the compensability of the claim or the status of the employee at the time of the injury was contested: 4Vasquez v. Sorrells Grove Care, Inc., 962 So.2d 411, 415 (Fla. 2d DCA 2007) (noting that the carrier contested the compensability of the claim and whether Vasquez was an employee); Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000) (holding that because the carrier contested the compensability of the claim and took the position that there was no evidence that the accident arose out of and in the course and scope of Hernandez's employment, there was no conclusion on the merits); Lowry v. Logan, 650 So.2d 653, 658 (Fla. 1st DCA 1995) (“there remain disputed issues of fact concerning whether Lowry is an [sic] covered employee or an independent contractor and whether he was injured in the course and scope of his employment”); Wright v. Douglas N. Higgins, Inc., 617 So.2d 460, 461–62 (Fla. 3d DCA 1993) (reversing summary judgment because there was no determination that plaintiff was an employee in the workers' compensation case); Wishart v. Laidlaw Tree Serv., Inc., 573 So.2d 183, 184 (Fla. 2d DCA 1991) (“The critical issue of fact which must be determined by the trial judge is whether the employee was injured in the course and scope of his employment.”); Velez v. Oxford Dev. Co., 457 So.2d 1388, 1391 (Fla. 3d DCA 1984) (reversing summary judgment because there was no determination that plaintiff was an employee in the workers' compensation case).

There was no question that Vallejos was injured during the scope of his employment. The signed release states that Vallejos “represents and affirms that all accidents, injuries, and occupation diseases known to have occurred or have been sustained while employed by the Employer have been revealed.” Vallejos admits that his entitlement to workers' compensation benefits was not a contested issue. Unlike many of the aforementioned cases, Professional and its carrier never denied Vallejos' claim.5

There are numerous cases which hold that when an employee is injured on the job and then applies for and receives workers' compensation benefits, a subsequent negligence suit is barred. Yero v. Miami–Dade Cnty., 838 So.2d 686, 687 (Fla. 3d DCA 2003); Townsend v. Conshor, Inc., 832 So.2d 166, 167 (Fla. 2d DCA 2002); Delta Air Lines, Inc. v. Cunningham, 658 So.2d 556, 557 (Fla. 3d DCA 1995); Coney v. Int'l Minerals & Chem. Corp., 425 So.2d 171, 171–72 (Fla. 2d DCA 1983).

Not only did Vallejos file an initial petition, but he filed six supplemental petitions. Professional and its carrier paid all of his medical bills. Vallejos received a total of $267,279.84, including the lump sum settlement. Lan and Infinity should not be held liable in a negligence action for the same injury already fully compensated by Professional.

Lastly, Vallejos' release did not contain a clause stating that the release should not be construed as an election of remedies, unlike the release in Vasquez.Vasquez, 962 So.2d at 414. Therefore, Vallejos did not reserve his right to elect another remedy. Vallejos argues that this does not matter because his signed release contained the following clause: [T]his release is in no way to be construed as an admission of any wrongdoing or liability on the part of the Releasees.” However, all this statement means is that there has been no determination on the merits as to neglect or intent for purposes of determiningwhether a claim can be made under an exception to statutory immunity. See infra section I.b. In a workers' compensation case, liability is irrelevant if the employee is covered.6

Florida's workers' compensation system was designed ... for workplace injuries that have occurred in the course and scope of employment.... [It] provides employees ... benefits, without regard to fault, for losses resulting from workplace injuries in exchange for the employee relinquishing his or her right to seek certain common law remedies from the employer....

Jones v. Martin Elecs., Inc., 932 So.2d 1100, 1104 (Fla.2006) (emphasis added). “Where an injury is suffered in the course and scope of employment, worker's compensation is the exclusive remedy for recovery against the employer.” Wishart, 573 So.2d at 184 (citing Fla. Stat. § 440.11).

[W]hether the injury to the employee is caused by “gross negligence”, “wanton negligence”, “simple negligence” passive or active, or no negligence at all of the employer, is of no consequence. There is no semblance of suggestion in these statutes that the Legislature intended to make any distinction in degrees of negligence so far as the employer's immunity is concerned and we...

To continue reading

Request your trial
14 cases
  • In re Davol, Inc.
    • United States
    • U.S. District Court — Southern District of Ohio
    • 5 Octubre 2021
    ... ... , 176 ... So.3d 329, 335 (Fla. Dist. Ct. App. 2015) (quoting ... Vallejos v. Lan Cargo S.A. , 116 So.3d 545, 552 (Fla ... Dist. Ct. App. 2013)). A plaintiff must ... ...
  • Sound Around, Inc. v. Hialeah Last Mile Fund VII LLC
    • United States
    • U.S. District Court — Southern District of Florida
    • 7 Abril 2023
    ... ... Controls, Inc. , 176 So.3d 329, 335 (Fla. 3d DCA 2015) ... (quoting Vallejos v. Lan Cargo S.A. , 116 So.3d 545, ... 551 (Fla. 3d DCA 2013)); see also Restat 2d of ... ...
  • R.L. Haines Constr., LLC. v. Santamaria
    • United States
    • Florida District Court of Appeals
    • 19 Septiembre 2014
    ...certainty result in injury. While it may make injury more likely, the statute demands far more.” Id.In Vallejos v. Lan Cargo, S.A., 116 So.3d 545 (Fla. 3d DCA 2013), the Third District reiterated the List Industries formulation as to “virtual certainty.” There, the court upheld summary judg......
  • Watson v. Bank of Am. Corp.
    • United States
    • U.S. District Court — Southern District of Florida
    • 21 Julio 2014
    ...the part of the tortfeasor, and 3) an act or omission that evinces a conscious disregard of the consequences." Vallejos v. Lan Cargo S.A., 116 So. 3d 545, 552 (Fla. 3d DCA 2013). Under Florida law, there is no duty to act for the benefit and protection of the other party in a usual creditor......
  • Request a trial to view additional results
2 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT