Zeiger Crane Rentals, Inc. v. Double A Industries, Inc.
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2009
ZEIGER CRANE RENTALS, INC., and CARL JARRELL,
Appellants,
v.
DOUBLE A INDUSTRIES, INC. a Florida Corporation, and P.F.
CONSTRUCTION INC., a Florida Corporation,
Appellees.
Nos. 4D08-606 & 4D08-2388
[August 5, 2009]
DAMOORGIAN, J.
Zeiger Crane Rentals, Inc. a n d Carl Jarrell (collectively “the
Appellants”) appeal the trial court’s order granting Double A Industries,
Inc.’s motion to dismiss and the final summary judgment in favor of P.F.
Construction, Inc. We reverse the portion of the trial court’s order
dismissing Count III of the Appellants’ complaint, the breach of contract
claim against Double A. We affirm all other portions of both orders.
Double A was hired by a property developer as a general contractor to
construct a single-family residence in Palm Beach County. Double A
hired P.F. Construction as a subcontractor to provide labor for the
construction of the residence. A s part of the construction process,
Double A entered into a contract with Zeiger to lease a crane and a crane
operator, Carl Jarrell, for work on the residence.
On May 2, 2006, Javier Torres-Palacio, a n employee of P.F.
Construction, was injured at the work site. Torres-Palacio and his wife,
Dolores Morales (“the Plaintiffs”), filed a complaint, and subsequently two
amended complaints, against the Appellants. In the Second Amended
Complaint, the Plaintiffs allege that Torres-Palacio was employed by P.F.
Construction o n a construction project in which Double A was the
general contractor a n d P.F. Construction was o n e of Double A’s
subcontractors. Double A leased a crane from Zeiger to work at the
construction project and Zeiger supplied Jarrell as the crane operator at
the project. Torres-Palacio was standing on beams on the roof of the
home, which was under construction, when he was hit by a large truss
that was being lifted onto the roof by Zeiger’s crane, operated by Jarrell.
Torres-Palacio fell to the ground and was injured. Torres-Palacio’s
accident occurred while Torres-Palacio, P.F. Construction, Double A,
Zeiger, and Jarrell were working on a common construction project. The
Plaintiffs allege that Zeiger and Jarrell were grossly negligent and acted
in willful, wanton, and reckless disregard for Torres-Palacio’s health and
safety.
The Appellants filed a third-party complaint against Double A and
P.F. Construction alleging common law indemnity, contribution, and
breach of contract against each of the third-party defendants.
Thereafter, Double A filed a motion to dismiss the third-party
complaint for failure to state a claim. After a hearing, the trial court
granted the motion with respect to all three claims against Double A.
P.F. Construction subsequently filed a motion for summary judgment
expressly incorporating Double A’s motion to dismiss. P.F. Construction
urged the trial court to grant its motion for summary judgment because
“[i]f Double A Industries is entitled to dismissal u n d e r these
circumstances, then a fortiorari P.F. Construction, as the plaintiff’s
employer, is entitled to dismissal as well.” After conducting a hearing on
the matter, the trial court issued a final summary judgment in favor of
P.F. Construction with respect to all three of the Appellants’ claims.
Zeiger and Jarrell now appeal the trial court’s order of dismissal and
final order granting summary judgment.
The Motion to Dismiss
The standard for reviewing a trial court’s order granting a motion to
dismiss is de novo. Regis Ins. Co. v. Miami Mgmt., Inc., 902 So. 2d 966,
968 (Fla. 4th DCA 2005). “A motion to dismiss tests whether the plaintiff
has stated a cause of action . . . . When determining the merits of a
motion to dismiss, a court may not go beyond the four corners of the
complaint a n d must accept the facts alleged therein a n d exhibits
attached as true, with all reasonable inferences drawn in favor of the
pleader.” Id. (citations omitted).
Although we find that the Appellants stated a claim for common law
indemnity against Double A, we affirm the order dismissing this claim
because it is precluded by the pleading and proof requirements in section
440.10(1)(e), Florida Statutes (2007), which is part of Florida’s Workers’
Compensation Act. The interplay between common law indemnity and
this section of the Workers’ Compensation Act is a n issue of first
impression for this court.
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Florida’s Workers’ Compensation Act is intended to provide a “quick
and efficient delivery of disability and medical benefits to an injured
worker and to facilitate the worker’s return to gainful reemployment at a
reasonable cost to the employer.” § 440.015, Fla. Stat. (2007). In
exchange for strict liability and quick distribution of benefits, the worker
gives up the right to pursue a common law negligence action against his
or her employer. Turner v. PCR, Inc., 754 So. 2d 683, 686 (Fla. 2000).
The Florida Legislature has provided limited exceptions to the workers’
compensation scheme. See, e.g., § 440.11(1)(b), Fla. Stat. (2007) (the
intentional tort exception). One of those exceptions is embodied in
section 440.10(1)(e), Florida Statues, which provides horizontal immunity
for certain subcontractors, as follows:
A subcontractor providing services in conjunction with a
contractor on the same project or contract work is not liable
for the payment of compensation to the employees of another
subcontractor or the contractor on such contract work and
is protected by the exclusiveness-of-liability provisions of s.
440.11 from any action at law or in admiralty on account of
injury to an employee of another subcontractor, or of the
contractor, provided that:
1. The subcontractor has secured workers' compensation
insurance for its employees or the contractor has secured
such insurance o n behalf of the subcontractor a n d its
employees in accordance with paragraph (b); and
2. The subcontractor's own gross negligence was not the
major contributing cause of the injury.
(emphasis added). By using the word “own,” we believe that the Florida
Legislature meant to allow a claim against a same-project subcontractor
only where the subcontractor’s direct gross negligence was the major
contributing cause of the plaintiff’s injury.
Accordingly, in order for the Plaintiffs to successfully pursue a claim
against Zeiger or Jarrell, a same-project subcontractor and its employee,
they have to plead and prove that Zeiger’s or Jarrell’s own gross
negligence was the major contributing cause of Torres-Palacio’s injury. If
the Plaintiffs cannot meet this burden of proof, then the Appellants are
protected by the exclusiveness-of-liability provision in section 440.11(1),
Florida Statutes, which states that an employer’s liability under the
Workers’ Compensation Act is “exclusive and in place of all other liability,
including vicarious liability, of such employer to any third-party
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tortfeasor and to the employee . . . .”
Common law indemnity “shifts the entire loss from one who, although
without active negligence or fault, has been obligated to pay, because of
some vicarious, constructive, derivative, or technical liability, to another
who should bear the costs because it was the latter's wrongdoing for
which the former is held liable.” Houdaille Indus., Inc. v. Edwards, 374
So. 2d 490, 493 (Fla. 1979). “A weighing of the relative fault of
tortfeasors has no place in the concept of indemnity for the one seeking
indemnity must be without fault.” Id. In order for a common law
indemnity claim to stand, a two-pronged test must be satisfied: (1) the
indemnitee must be faultless and (2) the indemnitee’s liability must be
solely vicarious for the wrongdoing of another. Gen. Portland Land Dev.
Co. v. Stevens, 395 So. 2d 1296, 1299 (Fla. 4th DCA 1981) (discussing
Houdaille, 374 So. 2d 490).
We conclude that it is a legal impossibility for a gross negligence claim
u n d e r section 440.10(1)(e), Florida Statutes a n d a common law
indemnity claim to be simultaneously successful because each claim
requires proof of fault that cannot co-exist with the other claim’s
requirement.
If a plaintiff is able to prove that the same-project
subcontractor’s own gross negligence is the major contributing cause of
his injury, then the subcontractor’s direct fault will preclude its recovery
in the common law indemnity claim. See Houdaille, 374 So. 2d at 493.
Conversely, if the subcontractor is able to prove that a third-party is
wholly at fault for the plaintiff’s injury, thus satisfying the requirement
for common law indemnity, the plaintiff will not succeed in his claim
under section 440.10(1)(e), Florida Statutes because the subcontractor’s
own gross negligence is not the major contributing cause of his injury.
This case is analogous to Houdaille. There, an employee was killed at
his workplace when a steel wire cable broke. Id. at 492. His employer,
Houdaille Industries, paid workmen’s compensation benefits to his
survivors. Id. The survivors, in turn, sued the manufacturer of the
cable, Florida Wire a n d Cable Co., alleging that Florida Wire had
breached its implied warranty of fitness and that this breach was the
direct and proximate cause of the employee’s death. Id. Florida Wire
filed a third-party complaint against Houdaille seeking common law
indemnification. Id. It alleged that Houdaille’s active negligence caused
the employee’s death, and that its negligence, if any, was passive. Id.
The Florida Supreme Court held that the “traditional principles of
indemnity” precluded Florida Wire from recovering from Houdaille in its
common law indemnity claim because there was no basis to impute
negligence on the part of Houdaille to Florida Wire. Id. at 493. Thus,
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Florida Wire could be held liable for the employee’s death only if it was
directly at fault. Id. The Court noted that Florida Wire’s claim that
Houdaille’s negligence was the sole cause of the employee’s death was a
complete defense to the original action. Id.
Following the analysis in Houdaille, we hold that the trial court
properly dismissed th e Appellants’ claim for common law indemnity
because that claim is precluded by the pleading requirements in section
440.10(1)(e), Florida Statutes. The Appellants can achieve the same
result by claiming, as a complete defense, that Double A is wholly at fault
for Torres-Palacio’s injury. See id. If the Appellants are able to prove
this defense, it will defeat the Plaintiffs’ claim and avoid liability. If the
Appellants are not able to prove this defense, any claim of common law
indemnity would have been unsuccessful and, thus, unnecessary. This
outcome does not require the resolution of any factual disputes. To the
contrary, we are merely identifying that there is no viable cause of action
for third-party common law indemnity where the original action is
brought under section 440.10(1)(e), Florida Statutes.1
Contrary to the Appellants’ argument, our decision does not conflict
with the Florida Supreme Court’s decisions in Trail Builders Supply Co. v.
Reagan, 235 So. 2d 482 (Fla. 1970) and Sunspan Engineering &
Construction Co. v. Spring-Lock Scaffolding Co., 310 So. 2d 4 (Fla. 1975).
In both cases, the plaintiff (a n employee) sustained injuries from a
machine or materials used on the job site, and sued the manufacturer of
that machine or those materials. Trail Builders, 235 So. 2d at 482;
Sunspan, 310 So. 2d at 5. In turn, the manufacturer sued the plaintiff’s
employer for common law indemnity. Trail Builders, 235 So. 2d at 483;
Sunspan, 310 So. 2d at 5. The employer argued that it was protected by
the exclusiveness-of-liability provision in the Workers’ Compensation Act.
Trail Builders, 235 So. 2d at 483; Sunspan, 310 So. 2d at 5-6. The
Florida Supreme Court held that nothing in the Workers’ Compensation
Act precludes a passively negligent third-party tortfeasor from suing an
actively negligent employer for common law indemnity. Trail Builders,
235 So. 2d at 485; Sunspan, 310 So. 2d at 8. The Court was concerned
with the inequities that would arise b y removing the third-party
tortfeasor’s cause of action for common law indemnity against the
employer without providing that tortfeasor with any benefit from the
Workers’ Compensation Act in return. Trail Builders, 235 So. 2d at 484We understand that our decision may have the effect of requiring a sameproject subcontractor to incur the costs of defending a claim for which it is not
directly at fault. It is up to the legislature, not this Court, to construct a
remedy for this potential inequity.
1
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85; Sunspan, 310 So. 2d at 7-8.
However, “it is clear that Sunspan and Trail Builders stand only for
the proposition that the immunity of the workmen’s compensation
statute does not protect against an indemnity action so long as such an
action is viable in the first place.” Houdaille, 374 So. 2d 490, 494 n.4
(emphasis added). Here, the Appellants’ common law indemnity claim
was not viable in the first place, so the action was properly dismissed.
Moreover, the inequities that concerned the Court in Trail Builders
and Sunspan are not present in this case because Workers’
Compensation Act specifically protects same-project subcontractors from
being sued by injured employees except where the injuries arose out of
the subcontractors’ own gross negligence. The legislature stated as
much by expressly giving same-project subcontractors protection under
the exclusiveness-of-liability provision in section 440.11(1), Florida
Statutes.
See § 440.10(1)(e), Fla. Stat. (2007).
Same-project
subcontractors who are sued under section 440.10(1)(e), Florida Statutes
will never be required to compensate an employee for the direct fault of
another party.
Next, we affirm the portion of the trial court’s order dismissing the
Appellants’ contribution claim against Double A because that claim is
also precluded by the Workers’ Compensation Act.
The right to seek contribution is statutory, and is found in section
768.31(2)(a), Florida Statutes: “Except as otherwise provided in this act,
when two or more persons become jointly or severally liable in tort for the
same injury to person or property, or for the same wrongful death, there
is a right of contribution among them even though judgment has not
been recovered against all or any of them.” In Seaboard Coast Line
Railroad Co. v. Smith, 359 So. 2d 427 (Fla. 1978), the Florida Supreme
Court held that section 440.11, Florida Statutes, “precludes an employer
from being designated as a person ‘jointly or severally liable in tort for
the same injury to person or property’ as used in the contribution act.”
Id. at 429. The Court further explained that contribution requires
“common liability” to the employee, and that such common liability
cannot exist because the employer is immune from liability (subject to
limited exceptions) under the Workers’ Compensation Act. Id. Thus, the
Appellants’ contribution claim is precluded.
Finally, we reverse the portion of the order dismissing the Appellants’
breach of contract claim against Double A. Double A and Zeiger entered
into a contract for Zeiger’s work o n th e project site. That contract
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included the following indemnity clause:
RESPONSIBILITY FOR USE. Lessee [Double A] agrees to
indemnify, defend and hold harmless Lessor [Zeiger], its
employees, operators and agents from any and all claims . . .
for bodily injury . . . resulting from the use, operation or
possession of the crane and operator whether or not it be
claimed or found that such damage or injury resulted in
whole or in part from Lessor’s negligence, from a defective
condition of the crane or operator, or from any act, omission
or default of Lessor.
The Appellants demanded indemnity from Double A under this clause,
but Double A refused to provide it. As a result, the Appellants sued
Double A for breach of contract in Count III of the third-party complaint.
The trial court dismissed Count III because the Plaintiffs alleged that the
Appellants were grossly negligent and Double A contracted to indemnify
the Appellants only for their simple negligence.
We disagree. First, we note that Florida courts view with disfavor
contracts that attempt to indemnify a party against its own negligence.
See Charles Poe Masonry Inc. v. Spring Lock Scaffolding Rental Equip. Co.,
374 So. 2d 487, 489 (Fla. 1979). The parties’ contract in this case is
enforceable, however, because it expresses in clear and unequivocal
terms Double A’s intent to indemnify Zeiger against its own or its
employees’ own wrongful acts. See Cox Cable Corp. v. Gulf Power Co.,
591 So. 2d 627, 629 (Fla. 1992). In addition, the parties did not limit the
term “negligence” in the contract, so that term should include any kind
of negligence, whether simple or gross. See Borden v. Phillips, 752 So. 2d
69 (Fla. 1st DCA 2000) (where the term ‘negligence’, as used in an
indemnity clause, is not limited, it should be construed as intending to
encompass all forms of negligence, simple or gross, with only intentional
torts being excluded); Theis v. J&J Racing Promotions, 571 So. 2d 92 (Fla.
2d DCA 1990) (a waiver releasing a party from “negligence” excused that
party from liability for all forms of negligence, simple or gross, because
the term was not limited in the contract).
Motion for Summary Judgment
In its motion for summary judgment on Counts IV and V (common
law indemnity and contribution, respectively), P.F. Construction made
the same arguments for summary judgment that Double A made in its
motion to dismiss. The trial court granted the motion for summary
judgment without explanation.
We affirm for the same reasons
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addressed above with regard to the motion to dismiss.
Affirmed in part; Reversed in part and Remanded.
WARNER and STEVENSON, JJ., concur.
*
*
*
Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Elizabeth T. Maass a n d Edward A.
Garrison, Judges; L.T. Case No. 502007CA001455.
Robert J. Witmeyer, John M. Murray and Michael G. Shannon of
Murray, Morin & Herman, P.A., Tampa, for appellants.
Joseph R. Lowicky of Glickman, Witters and Marell, P.A., West Palm
Beach, for appellee, Double A Industries, Inc.
Mark A. Hruska and Steven G. Schwartz of Schwartz & Horwitz, PLC,
Boca Raton, for appellee, P.F. Construction, Inc.
Not final until disposition of timely filed motion for rehearing.
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