Zurich Ins. Co. v. Scofi

• Decision Date: 05 January 1979
• Docket Number: No. 77-1087,77-1087
• Citation: 366 So.2d 1193
• Parties: ZURICH INSURANCE COMPANY et al., Appellants, v. Joanne SCOFI, etc., Appellees.
• Court: Florida District Court of Appeals

Page 1193

366 So.2d 1193

ZURICH INSURANCE COMPANY et al., Appellants, v. Joanne SCOFI, etc., Appellees.

No. 77-1087.

District Court of Appeal of Florida, Second District.

Jan. 5, 1979.

As Modified On Denial of Rehearing Feb. 9, 1979.

Alton G. Pitts of Pitts, Eubanks, Ross & Rumberger, Orlando, for appellants.

Edward A. Perse of Horton, Perse & Ginsberg, Miami, and John A. Lloyd, Jr. of Lloyd & Henninger, St. Petersburg, for appellees.

OTT, Judge.

The appellees' decedent was working in a trench when a cave-in occurred. He died as a result of his injuries. At the time of his death, the decedent and the appellant/supervisor were employed by the same company. The appellant was neither an officer, shareholder nor director in the employing company. Appellant, however, was the supervisor in charge at the job site.

The issue is whether the appellant, decedent's supervisor, is immune from a common law third party action in negligence by virtue of the employer's workmen's compensation coverage. We believe so and reverse.

The survivors received workmen's compensation benefits. Thereafter, this tort action was brought against the supervisor which resulted in a jury verdict and final judgment for the survivors.

The law of Florida is that "the liability of a corporate officer in a third party action must derive from acts done by him in the capacity of a co-employee and may not be predicated upon acts done by him in his capacity as a corporate officer." West v. Jessop, 339 So.2d 1136, 1137 (Fla. 2d DCA 1976) citing Kruse v. Schieve, 61 Wis.2d 421, 213 N.W.2d 64 (1973). The West court also stated:

(A) corporate officer becomes amenable to suit as a co-employee when he has committed an affirmative act of negligence which goes beyond the scope of the nondelegable duty of the employer to provide his employees with a safe place to work. West, supra at 1137 citing Kruse, supra.

In Kruse the supreme court of Wisconsin elaborated upon a supervisor's liability:

Under what circumstances can a duty be owed to a fellow employee additional to and different from the duty of proper supervision that is owed to the employer by a corporate officer or supervisory employee? Clearly Something extra is needed over and beyond the duty owed the employer. (Emphasis supplied). 213 N.W.2d at 67. ¹

In the instant case, there is nothing in the record to indicate that the supervisor committed any such affirmative act of negligence which went beyond the scope of his employer's duties. Simply stated, the "something extra" as required by Kruse was missing in the instant case. ²

The lower court admitted into evidence various state safety rules. These rules were to the effect that trenches in excess of a certain depth must have sheeting or bracing. The lower court gave instructions regarding the state safety rules as follows:

There are other aspects of the requirements of those rules and regulations . . . which you will have an opportunity to examine at length when you go to the jury room. But you're instructed (that) a violation of these rules is negligence. If you find a person alleged to have been negligent violated these rules then that person is negligent. ³

This was the negligence charged to the appellant. If a state safety rule was violated at the job site, this was a responsibility of the employer which it can only discharge (or fail to discharge) through its supervisory employee. The supervisor merely carries out the responsibility or duty of the employer. For this purpose he is the employer's alter ego. Thus, under such circumstances, the supervisor should be entitled to the immunity of the employer.

Appellee contends that immunity does not extend to the supervisor because he was neither a shareholder, officer, nor director of the corporation for whom he worked. Most of the reported cases deal with corporate officers (or shareholders or directors) and hence the appellee argues that such cases are authority that the employer's immunity from tort liability by virtue of workmen's compensation coverage extends Only to such "official" persons. We do not think this is the import of these cases.

Our holding is that the immunity of the corporate employer extends to its supervisor where that supervisor has committed no affirmative act of negligence going beyond the scope of...