DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
January Term 2012
VICTOR MANUEL MENA,
J.I.L. CONSTRUCTION GROUP CORP., a Florida corporation, SLORP
CONSTRUCTION COMPANY, INC., a Florida corporation, and C.C.R.C.
CONSTRUCTION, INC., a Florida corporation,
[February 15, 2012]
Appellant, Victor Mena, appeals final orders of the trial court granting
summary judgment in favor of appellees, J.I.L. Construction Group
Corporation (“J.I.L.”) and Slorp Construction Company, Inc. (“Slorp”).
The trial court determined that J.I.L. and Slorp were immune from
Mena’s tort action because worker’s compensation was Mena’s exclusive
remedy. J.I.L. and Slorp and their carriers had previously denied Mena’s
claims for worker’s compensation. We reverse the trial court’s order
granting summary judgment for J.I.L. because issues of material fact
remain with respect to whether J.I.L. is estopped from claiming that it is
entitled to worker’s compensation immunity, based on the language it
used when it denied benefits to Mena. We affirm the order granting
summary judgment for Slorp because Slorp is not estopped from
asserting immunity and is otherwise entitled to immunity under the
Worker’s Compensation Act. We also affirm the trial court’s denial of
Mena’s motion for partial summary judgment.
The general contractor for a residential development in Davie, Florida
subcontracted the shell construction of the homes to Slorp. Slorp
subcontracted part of its work to J.I.L. J.I.L. hired Victor Mena. On
December 4, 2004, while constructing a home, Mena fell to the ground
from a second-floor roof truss. Mena sustained multiple injuries and
incurred over $70,000 in medical expenses.
Mena filed claims for worker’s compensation benefits with J.I.L. and
Slorp. Slorp denied Mena’s “entire claim both medically and indemnity.”
Slorp maintained in its notice of denial that Mena was employed by
J.I.L., not Slorp, and that J.I.L. had provided Slorp with proof that J.I.L.
had a policy of worker’s compensation insurance in effect for the date of
Mena’s accident. J.I.L.’s notice of denial also informed Mena that it was
denying his “entire claim.” As its reasons, J.I.L. stated:
1. There is no employer/employee relationship established.
2. Failure to report injury timely.
3. The Employer/Carrier/Servicing Agent reserves the right
to these a n d any other defenses that may become
Eight months after he petitioned for benefits, Mena voluntarily
dismissed his petitions a n d filed suit against J.I.L. a n d Slorp for
negligence. As an affirmative defense, Slorp asserted that Mena “was
acting in the course a n d scope of employment performing work
subcontracted by the Defendant [Slorp] to Plaintiff’s employer [J.I.L.] and
therefore, the Plaintiff’s claim is barred as a result of workers’
compensation immunity pursuant to Florida Statute 440.11.” J.I.L.
asserted that “Plaintiff’s damages are barred b y Florida’s workers
compensation statute.” Both J.I.L. and Slorp also defended by listing
comparative negligence a n d assumption of the risk as affirmative
Mena moved for partial summary judgment, arguing that under
section 440.11(1)(a), Florida Statutes (2008), J.I.L. and Slorp were not
entitled to defenses of comparative negligence or assumption of the risk.
The trial court denied this motion. J.I.L. and Slorp moved for summary
judgment on the basis that they were immune from Mena’s tort suit as a
matter of law because Mena’s injuries were compensable exclusively
under Florida’s Worker’s Compensation Act. J.I.L. acknowledged that it
was Mena’s employer. Mena argued that J.I.L. and Slorp should be
estopped from asserting worker’s compensation immunity because of
their previous denials. The trial court granted summary judgment in
favor of both J.I.L. a n d Slorp, finding that their previous “general
denials” were not inconsistent with their claims of entitlement to worker’s
compensation immunity. We now reverse the trial court’s award of
summary judgment for J.I.L., but affirm the award for Slorp.
The standard of review of an order granting summary judgment is de
novo. Coleman v. Grandma’s Place, Inc., 63 So. 3d 929, 932 (Fla. 4th
DCA 2011). If the evidence raises any issue of material fact, if it is
conflicting, if it will permit different reasonable inferences, or if it tends
to prove the issues, summary judgment is inappropriate. Id. On a
motion for summary judgment, “the court’s function is solely to
determine whether the record conclusively shows that the moving party
proved a negative, that is, ‘the nonexistence of a genuine issue of a
material fact.’” Nunes v. Allstate Inv. Props., Inc., 69 So. 3d 988, 989 (Fla.
4th DCA 2011) (citation omitted). Summary judgment should not be
granted “[w]here a written instrument lends itself to more than one
reasonable interpretation.” Yardum v. Scalese, 799 So. 2d 382, 383 (Fla.
4th DCA 2001).
“[U]nder Florida law, where injuries are not encompassed within our
Worker’s Compensation Act, the employee is free to pursue his or her
common law remedies.” Tractor Supply Co. v. Kent, 966 So. 2d 978, 98182 (Fla. 5th DCA 2007). Further, where an employer denies a claim for
worker’s compensation benefits on the basis that the injury did not occur
in the course and scope of employment, or that there was no employment
relationship, the employer may be estopped from asserting in a later tort
action that the worker’s exclusive remedy was worker’s compensation,
provided that the employee can satisfy the elements of estoppel. See
Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545, 547-49 (Fla. 3d DCA
2010); Byerley v. Citrus Publ’g, 725 So. 2d 1230, 1232-33 (Fla. 5th DCA
1999) (a contrary rule “would eviscerate the Workers’ Compensation Act
a n d allow employers to avoid all liability for employee job related
For the possibility of estoppel to arise, however, the
employer’s assertion of worker’s compensation immunity must be
“clearly irreconcilable” with the reason for its initial denial. Kent, 966 So.
2d at 981; Ashby v. Nat’l Freight, Inc., No. 8:09-cv-582-T-30MAP, 2009
WL 1767620, at *3 (M.D. Fla. June 23, 2009) (estoppel is “only available
when the employer attempts to take inconsistent positions”).
If the language employed in the notice of denial could give rise to more
than one interpretation, such that it cannot be fairly determined whether
the employer’s positions are inconsistent, summary judgment is
inappropriate. Schroeder v. Peoplease Corp., 18 So. 3d 1165, 1168-69
(Fla. 1st DCA 2009); Elliott v. Dugger, 542 So. 2d 392, 394 (Fla. 1st DCA
1989). In Schroeder, the employer’s notice of denial listed six different
reasons. 18 So. 3d at 1166. Two of the reasons stated, “The present
condition of claimant is not the result of injury arising out of and in the
course of his or her employment,” and “The condition complained of is
not the result of an injury within the meaning of the term as used in the
Florida Compensation Act.” Id. The other four reasons suggested that
the denial was based on a preexisting condition of the employee. Id. The
First District reversed the trial court’s entry of summary judgment,
holding “[w]hether estoppel is appropriate in this case and whether the
employer took irreconcilable positions is dependent upon the meaning to
be accorded the notice of denial.” Id. at 1170. See also Elliott, 542 So.
2d at 394 (reversing summary judgment because “genuine issues of
material fact concerning the issue of estoppel” existed where the denial
could have meant either “that there had yet been no injury shown” or
“the injury was not a covered injury”).
In the instant case, J.I.L. argues that the first reason for its denial,
i.e., that “[t]here is no employer/employee relationship established,” left
an open question as to Mena’s status as its employee. Therefore, the
argument goes, its later admission that Mena was its employee just
“closes” the question; there is no inconsistency between its assertion that
it is entitled to worker’s compensation immunity and this reason for the
denial. We disagree. J.I.L.’s denial suggested it was asserting that Mena
was not its employee. At the very least, as in Schroeder, “the meaning of
the language employed in the notice of denial” is unclear. 18 So. 3d at
1170. Accordingly, issues of material fact remain with respect to
whether J.I.L. asserted inconsistent positions and whether it should be
estopped from claiming it is entitled to worker’s compensation immunity
under section 440.11(1), Florida Statutes (2004). We therefore reverse
the entry of summary judgment in favor of J.I.L.
By contrast, in our view, the record indicates that Slorp maintained
consistent positions in the worker’s compensation forum and in Mena’s
civil action. Slorp denied Mena’s worker’s compensation claim on the
basis that Mena was employed by J.I.L., not Slorp, and that J.I.L. had
coverage. Slorp’s affirmative defense of worker’s compensation immunity
stated that Mena was acting in the course and scope of employment
performing work subcontracted by Slorp to J.I.L. Accordingly, we hold
that there was no inconsistency, and no corresponding possibility of an
estoppel as to Slorp.
We note that, contrary to the arguments of J.I.L. and Slorp, under the
circumstances of this case Mena was not required to litigate his claims to
a final adjudication in the worker’s compensation forum. For this
proposition, J.I.L. and Slorp rely on Marta v. Continental Manufacturing
Co., 400 So. 2d 181 (Fla. 4th DCA 1981). In Marta, an injured employee
filed a claim for worker’s compensation benefits, and th e employer’s
carrier disputed the existence of coverage. Id. After a hearing, a worker’s
compensation judge determined that, in fact, the employer did not have
coverage. Id. at 181-82. The employee filed suit in circuit court, and the
trial court dismissed the complaint on the basis that the employee’s
“original filing of a claim” in the worker’s compensation forum
“constituted an election of remedies.” Id. at 182. This court reversed,
holding that the employee could not have made an election of remedies
because “his right to sue in circuit court did not accrue until it had been
determined that [the employer] lacked insurance coverage.” Id. We
noted that “suit in circuit court was not an option available to [the
employee] prior to that determination.” Id.
Marta is consistent with the well-established “rule that either a
dismissed or a n unsuccessful compensation claim does not bar a
damage suit.” Lowry v. Logan, 650 So. 2d 653, 656 (Fla. 1st DCA 1995).
See also Williams v. Duggan, 153 So. 2d 726, 727 (Fla. 1963); Rush v.
BellSouth Telecomms., 773 F. Supp. 2d 1261, 1263-64 (N.D. Fla. 2011)
(“Nothing in Kent, or any other Florida case for that matter, even
remotely stands for the proposition” that an employee’s “claims should
be decided by the judge of compensation claims before [the employee] is
allowed to bring a claim in civil court” where employer denies claim in
the compensation forum because the claim is outside the course and
scope of employment).
It remains to be determined whether the trial court was correct in
holding that Slorp was entitled to worker’s compensation immunity.
“The liability of an employer prescribed in s. 440.10 shall be exclusive
and in place of all other liability, including vicarious liability, of such
employer to . . . the employee,” unless the employer fails to secure
payment of compensation or commits an intentional tort. § 440.11(1),
Fla. Stat. (2004).
Specifically, with respect to a contractor-subcontractor relationship:
In case a contractor sublets any part or parts of his or her
contract work to a subcontractor or subcontractors, all of
the employees of such contractor and subcontractor or
subcontractors engaged on such contract work shall be
deemed to be employed in one and the same business or
establishment, and the contractor shall be liable for, and
shall secure, the payment of compensation to all such
employees, except to employees of a subcontractor who has
secured such payment.
§ 440.10(1)(b), Fla. Stat. (2004). Put differently, “where a subcontractor
performing part of the work of a contractor fails to secure payment of
compensation, the contractor is liable for the same.”1 Amorin v. Gordon,
996 So. 2d 913, 916 (Fla. 4th DCA 2008) (quoting Motchkavitz v. L.C.
Boggs Indus., Inc., 407 So. 2d 910, 912 (Fla. 1981), overruled on other
grounds by Emp’rs Ins. of Wausau v. Abernathy, 442 So. 2d 953 (Fla.
1983)). Section 440.10 “insure[s] that a particular industry will be
financially responsible for injuries to those employees working in it, even
though th e prime contractor employs a n independent contractor to
perform part or all of its contractual undertaking.” Roberts v. Gator
Freightways, Inc., 538 So. 2d 55, 60 (Fla. 1st DCA 1989). The scheme
set forth in section 440.10(1)(b) applies to a subcontractorsubsubcontractor relationship as well, like the one in this case.
Dempsey v. G & E Constr. Co., 556 So. 2d 426, 427 (Fla. 4th DCA 1989).
J.I.L. procured a policy of worker’s compensation insurance that was
in effect for the date of Mena’s accident. Slorp verified that J.I.L. had
coverage. Slorp was Mena’s statutory employer because it owed a
contractual obligation to the general contractor and subcontracted a
portion of that work to J.I.L., thus taking on the responsibility to provide
coverage for Mena in the event J.I.L. failed to do so. See Candyworld,
Inc. v. Granite State Ins. Co., 652 So. 2d 1165, 1167 (Fla. 4th DCA 1995);
Woods v. Carpet Restorations, Inc., 611 So. 2d 1303, 1304 (Fla. 4th DCA
1992). “[W]here the statutory employer secures coverage or ensures that
the subcontractor does so, the statutory employer is immune from suit for
the employees’ personal injuries.” Adams Homes of Nw. Fla., Inc. v.
Cranfill, 7 So. 3d 611, 613 (Fla. 5th DCA 2009) (emphasis added).
Accord Latite Roofing & Sheet Metal Co. v. Barker, 886 So. 2d 1064, 1066
(Fla. 4th DCA 2004) (contractor “performed in the way the statute sought
to encourage” and was “entitled to immunity” where it verified that its
subcontractor had coverage); Motchkavitz, 407 So. 2d at 913 (“It is the
liability to secure coverage for s u c h employees in the event the
subcontractor does not do so that immunizes a contractor from suit by
Consequently, Slorp was immune from Mena’s
negligence action, and we affirm the trial court’s entry of summary
judgment for Slorp.
We also affirm the trial court’s denial of Mena’s motion for partial
summary judgment. Mena sought a determination that, as a matter of
The statutory language “secure payment of compensation” means “insuring
and keeping insured the payment of such compensation with any stock
company or mutual company or association or exchange, authorized to do
business in the state.” § 440.38(1)(a), Fla. Stat. (2004); Limerock Indus., Inc. v.
Pridgeon, 743 So. 2d 176 (Fla. 1st DCA 1999). We therefore reject Mena’s
argument that the term imposes an automatic duty to actually pay benefits
wherever it is used in the statute.
law, J.I.L. and Slorp were not entitled to assert traditional affirmative
defenses to negligence: that the injury was caused by negligence of a
fellow employee, that Mena assumed the risk, or that the injury was
caused by Mena’s own comparative negligence. Section 440.11, Florida
Statutes, provides that a defendant “may not plead” these defenses in an
employee’s action at law following his or her employer’s failure to secure
payment of compensation. § 440.11(1)(a), Fla. Stat. (2008). Because we
conclude that material issues of fact remain with respect to whether
J.I.L. is estopped from asserting its worker’s compensation immunity
defense, at this juncture, determining whether section 440.11 is
applicable is premature.
Affirme d in part, Reversed in part, and Remanded for proceedings
consistent with this opinion.
TAYLOR and GERBER, JJ., concur.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Richard Y. Feder, Judge; L.T. Case No. 07-2893 11.
Pamela Beckham of Beckham & Beckham, P.A., North Miami Beach,
Thomas A. Valdez and Brooke Chastain Juan of Quintairos, Prieto,
Wood and Boyer, P.A., Tampa, for appellee J.I.L. Construction Group
Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A.,
Fort Lauderdale, for appellee Slorp Construction Company, Inc.
Not final until disposition of timely filed motion for rehearing.