5D10-575 Lovering v. Nickerson

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Fifth District Court » 2011 » 5D10-575 Lovering v. Nickerson

State: Florida

Court: Florida Fifth District Court

Docket No: 5D10-575

Case Date: 08/22/2011

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2011

HOMER LOVERING, Appellant, v. LESLIE C. NICKERSON AND THE MIDDLESEX CORPORATION, Appellee. ________________________________/ Opinion filed August 26, 2011 Appeal from the Circuit Court for Orange County, Robert M. Evans, Judge. Jonathan W. Stidham and Jeffrey R. Sullivan of Stidham & Stidham, P.A., Bartow, and Monterey Campbell of Gray Robinson, P.A., Lakeland for Appellant. Michael R. D'Lugo, and Richards H. Ford, of Wicker, Smith, OHara, McCoy & Ford, P.A., Orlando, for Appellee. Case No. 5D10-575

PALMER, J. In this personal injury action, Homer Lovering appeals the final order entered by the trial court granting summary judgment in favor of appellees, Leslie Nickerson and the Middlesex Corporation, on their affirmative defense of workers' compensation immunity. Determining that the trial court erred in concluding that Florida's statutory doctrine of workers' compensation immunity operates to bar Lovering from asserting negligence claims in this case, we reverse.

Middlesex was performing construction work on the Florida Turnpike pursuant to a contract with Florida's Department of Transportation, and Nickerson was a heavy equipment operator working for Middlesex in connection with the road project. Middlesex was obligated to relocate sections of barrier wall used on the construction site and sub-contracted with DB Express to provide trucking services to fulfill that obligation. DB Express in turn contracted with Trimmer Trucking to provide the trucking services needed by Middlesex. Trimmer Trucking leased a truck, as well as an unspecified driver/operator, to DB Express. At certain times, that driver/operator was Lovering. At the time of Lovering's injury, Nickerson was operating a front-end loader/forklift on the construction site, using the equipment to load concrete barrier wall sections onto a flatbed tractor trailer that was being driven by Lovering. The complaint explained that, while the concrete barrier wall sections were being loaded, a section fell over and landed on Lovering, causing injuries resulting in the amputation of his legs. Lovering filed a complaint for personal injury against Nickerson and Middlesex. Nickerson and Middlesex filed a joint answer generally denying liability and asserting several affirmative defenses, including a claim of workers' compensation immunity. Specifically, Nickerson and Middlesex maintained that, at the time of the accident, Lovering was a statutory employee of Middlesex and, therefore, workers' compensation immunity applied to bar Lovering's negligence claims. Nickerson and Middlesex filed a motion for summary judgment on their workers' compensation immunity defense. Lovering responded by filing a competing motion for summary judgment asserting that workers' compensation immunity did not apply to bar

2

his negligence claims because, at the time of his accident, Lovering was not a statutory employee of Middlesex. The trial court entered a written order granting Nickerson and Middlesex's motion for summary judgment. The order states that the trial court found that Lovering was a statutory employee "as defined in Florida Statute 440.01(15)(c)" at the time of his injury and, therefore, Nickerson and Middlesex were entitled to receive workers' compensation immunity from Lovering's negligence claims. The order also states that the trial court found "through reading of Florida Statute 440.02(15)(c)(1) through (4), that the Legislature has intended to include all persons working or performing services on a construction site within the definition of an 'employee'". This appeal timely followed. Combined application of sections 440.10 and 440.11 of Florida's Workers' Compensation Act operates to provide contractors with immunity from liability in negligence lawsuits filed by injured employees under certain circumstances. As

relevant to the instant appeal, section 440.10 of the Florida Statutes requires a contractor to obtain workers' compensation coverage for all of the employees working on the construction site. See

Download 5D10-575 Lovering v. Nickerson.pdf