Walton Dodge Chrysler-Plymouth Jeep and Eagle, Inc. v. H.C. Hodges Cash & Carry, Inc.

Decision Date04 September 1996
Docket NumberNo. 95-4253,CHRYSLER-PLYMOUTH,95-4253
Citation679 So.2d 827
Parties21 Fla. L. Weekly D2004 WALTON DODGEJEEP AND EAGLE, INC., a Florida Corporation, Appellant, v. H.C. HODGES CASH & CARRY, INC., a Florida Corporation, Appellee.
CourtFlorida District Court of Appeals

Charles A. Schuster of Bell, Schuster & Wheeler, P.A., Pensacola, for appellant.

Alan R. Horky and Belinda B. de Kozan of Fuller, Johnson & Farrell, P.A., Pensacola, for appellee.

WOLF, Judge.

This is an appeal pursuant to Florida Rules of Appellate Procedure 9.130(a)(3)(C)(vi) from a nonfinal order of the circuit court denying third-party defendant, Walton Dodge's, motion for summary judgment on the grounds that it is immune from liability pursuant to the workers' compensation law, Florida Statute 440.11, on the claim for contribution by the third-party plaintiff, H.C. Hodges Cash & Carry, Inc. (Hodge's Cash & Carry).

After discovery, Walton Dodge filed a motion for summary judgment on the contribution claim of Hodges Cash & Carry on the grounds that it was entitled to workers' compensation immunity as the plaintiff's employer. The judge of the circuit court denied the motion for summary judgment. The issue presented for review is whether the trial court erred in denying the third-party defendant employer's motion for summary judgment on the third-party plaintiff's contribution claim based on the employer's immunity pursuant to Florida Statute 440.11(1) (1993).

We find that the trial court did err, and reverse and remand for the trial court to enter a summary judgment in favor of the third-party defendant, Walton Dodge.

Charlie DePauw sustained injuries when a metal pole he was holding contacted, or came close to, high-voltage power lines as he was standing on the raised bed of a scissors truck owned by the appellee, Hodges Cash & Carry. DePauw was attempting to place the metal pole inside an existing metal flag pole which was located on the premises of Walton Dodge automobile dealership. DePauw, an employee of Walton Dodge, was apparently being directed in this endeavor by James Pittman, another employee of Walton Dodge, and by Ernest Webb, a part owner of the Walton Dodge dealership.

Prior to the injury, the Walton Dodge employees, in an effort to figure out a way to place this metal pole inside the existing metal flagpole (apparently for the purpose of strengthening the flagpole), contacted the Chattahoochee Electric Company (CHELCO), requesting the use of a utility-owned bucket truck. CHELCO employees warned DePauw, Pittman, and Webb of the danger of such a maneuver because of the close proximity to high-voltage power lines, and refused to allow them to use CHELCO equipment for that purpose.

James Pittman contacted Hodges Cash & Carry to request the use of its scissors truck. Hodges Cash & Carry agreed, and brought its scissors truck to the premises of Walton Dodge. There the driver of the truck, a Hodges Cash & Carry employee, attempted to maneuver the truck into a position where DePauw, standing on the raised bed of the truck holding the 17-foot metal pole, could slide the pole inside the existing flagpole. During this attempt, DePauw was injured when the metal pole he was holding came into contact, or very close contact, with an uninsulated high-voltage power line.

DePauw sued Hodges Cash & Carry for negligence in the use of the scissors truck. Hodges Cash & Carry then brought a third-party complaint against Walton Dodge for contribution. The third-party defendant, Walton Dodge, moved for summary judgment on the ground that section 440.11(1) grants employers and supervisors immunity from tort actions for work-related injuries. The motion for summary judgment was denied.

In Eller v. Shova, 630 So.2d 537, 539 (Fla.1993), the supreme court restated the law concerning the liability of an employer for injuries suffered by an employee during the course of employment:

[W]orkers' compensation is the exclusive remedy available to an injured employee as to any negligence on the part of that employee's employer. § 440.11(1). When employers properly secure workers' compensation coverage for their employees, employers are provided with immunity from suit by their employees so long as the employer has not engaged in any intentional act designed to result in or that is substantially certain to result in injury or death to the employee.

(Emphasis added).

The third-party claim here was an action for contribution under the Uniform Contribution Among Tort-Feasors' Act,, section 768.31(2)(a) (1993). That act provides for the right of contribution in favor of a tort-feasor who has paid more than his pro rata share of common liability. In Seaboard Coast Line Railroad Co. v. Smith, 359 So.2d 427 (Fla.1978), the supreme court approved the analysis of this court in United Gas Pipeline Co. v. Gulf Power Co., 334 So.2d 310 (Fla. 1st DCA 1976), cert. denied, 341 So.2d 1086 (Fla.1976), where we held that there is no right of contribution in favor of a third-party tort-feasor, because the workers' compensation employer and the third person are not under a "common liability" to the injured person. See also Firestone Tire & Rubber v. Thompson Aircraft, 353 So.2d 137 (Fla. 3d DCA 1977). Section 440.11 precludes an employer from being designated a person "jointly or severally liable in tort for the same injury to person or property" as used in the contribution act. In Seaboard Coast Line Railroad Co., the supreme court found that "such 'common liability' cannot exist where the employer is immunized from liability by the compensation act for tort." Id. at 429.

In State, DOT v. V.E. Whitehurst & Sons, 636 So.2d 101 (Fla. 1st DCA) rev. denied, 645 So.2d 456 (Fla.1994), this court dismissed a contribution claim by a third-party tort-feasor against an employer, finding the employer to be immune from liability under the Worker's Compensation Act where the third-party complaint failed to allege all of the elements required for a cause of action for contribution in such cases--meaning that the third-party complaint did not allege acts which rose to the level of "intentional or virtual certainty of injury or death." See id. at 105. In that case, this court recognized that a claim for contribution in favor of a third-party tort-feasor may exist only if the third-party tort-feasor breaches the employer's immunity by showing a deliberate intent to injure or conduct which is certain to lead to injury or death.

In Whitehurst, this court went on to discuss the standard for deliberate intent, finding that "the standard requires more than a strong probability of injury. It requires virtual certainty." Id. at 105 (citing Lawton v. Alpine Engineered Products, Inc., 498 So.2d 879, 880 (Fla.1986)). In Whitehurst, this court also noted that the supreme court in Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882, 884 (Fla.1986), quoted with approval from Prosser & Keeton On Torts 36 (W. Keeton 5th ed.1984), as follows:

[T]he mere knowledge and appreciation of risk--something short of substantial certainty--is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but is not an intentional wrong.

Fisher, supra at 884.

In Emergency One, Inc. v. Keffer, 652 So.2d 1233 (Fla. 1st DCA 1995), this court reviewed a nonfinal order denying defendant's motion for summary judgment based on workers' compensation immunity. In that claim, Ms. Keffer was a detailer of fire trucks who was expected to use a metal-banded detail brush and flammable lacquer thinner to clean places on the truck, including the battery compartment which held a live 24-volt battery. The battery emitted flammable hydrogen gas, and the employer was aware that metal arcs had extended from electrical sources to the metal-banded brushes in the past. The batteries had warnings of "explosive" and "no smoking," and there were drums of lacquer thinner nearby marked "flammable." The plaintiff had requested a plastic detail brush without metal, but had been refused by her supervisor because of the additional expense. Subsequently, Ms. Keffer was seriously injured in the process of detailing a battery case when the metal band on her paint brush caused an electrical arc which ignited the lacquer thinner.

Ms. Keffer sued her employer and her supervisor, alleging that they should have known to a virtual certainty that the batteries emitted flammable gas, that lacquer thinner used on the brushes was highly flammable that the metal-banded brushes would cause an arc from a live truck battery, and that it would set off a conflagration causing serious death or injury. This court held that an employer is immune from liability so long as the employer has not engaged in any intentional act designed to result in or that is substantially certain to result in injury or death to the employee. In Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882 (Fla.1986), the supreme court stated,

[E]ven assuming that these allegations are true, Shenandoah's failure to provide a safe work place or to follow OSHA guidelines does not...

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