SC04-2349 – Julio Aravena, Etc. v. Miami-Dade County

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State: Florida

Court: Supreme Court

Docket No: sc04-2349

Case Date: 04/06/2006

Plaintiff: SC04-2349 – Julio Aravena, Etc.

Defendant: Miami-Dade County

Preview:Supreme Court of Florida
No. SC04-2349
JULIO ARAVENA, etc.,
Petitioner,
vs.
MIAMI-DADE COUNTY,
Respondent.
[April 6, 2006]
PARIENTE, C.J.
We have for review the Third District Court of Appeal’s decision in Miami-
Dade County v. Aravena, 886 So. 2d 303 (Fla. 3d DCA 2004), which expressly
and directly conflicts with the Fourth District Court of Appeal’s decision in Palm
Beach County v. Kelly, 810 So. 2d 560 (Fla. 4th DCA 2002).  We have
jurisdiction.  See art. V, § 3(b)(3), Fla. Const.   The conflict issue is whether county
employees who work at different physical locations for different departments, have
different supervisors, and perform different duties and functions in their primary
assignments fall within the unrelated works exception to workers’ compensation
immunity.  We answer this question in the affirmative and conclude that the

unrelated works exception was intended to cover this precise set of circumstances.
We hold that although no bright-line rule governs, the unrelated works exception
has both locational and operational components and requires consideration of
several factors, which we set forth herein.
FACTS AND PROCEDURAL HISTORY
Miami-Dade County is the largest of Florida’s sixty-seven counties, and its
government comprises forty-five departments and approximately 30,000
employees.  Gregoria Vega was employed by Miami-Dade County’s Police
Department as a part-time elementary school crossing guard.  Her job was to help
children cross the street at the intersection of Southwest 16th Street and 62nd
Avenue.   On October 24, 2001, the traffic lights at the intersection were not
operating properly.  As a result, two vehicles collided in the intersection and one
veered off the road, killing Vega.  Vega was standing on the swale of the road at
the time of the accident, which occurred at approximately 7:20 a.m.
Julio Aravena, Vega’s husband, initiated a wrongful death case against the
county, alleging that the accident was caused in part by the negligence of the
county’s traffic signal repair personnel who failed to repair the malfunctioning
traffic lights at the intersection.  The traffic signal repair personnel worked for the
maintenance section of the Miami-Dade County Public Works Department, which
is located at 3655 Southwest 25th Terrace.  The maintenance section receives
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information from the traffic control section of the Public Works Department,
which is responsible for all traffic lights in Miami-Dade County and is located at
7100 Northwest 36th Street.
In response to the complaint, the county claimed that Aravena’s action was
barred by the portion of Florida’s Workers’ Compensation Law that accords tort
immunity to coemployees “acting in furtherance of the employer’s business” and
that the exception for employees “assigned primarily to unrelated works” did not
apply.   § 440.11(1), Fla. Stat. (2001).   The county filed a motion for summary
judgment, which was denied.  After a jury verdict in favor of Aravena, the county
filed a motion for judgment notwithstanding the verdict based on workers’
compensation immunity.  The trial court denied the county’s motion and entered
judgment for Aravena.  The parties did not dispute the facts relevant to the
determination of the issue of workers’ compensation immunity and this issue was
never argued to the jury.
The county appealed.   The Third District reversed the trial court’s order
denying the county’s motion for judgment notwithstanding the verdict and
remanded for entry of judgment for the county based on workers’ compensation
immunity.  See Aravena, 886 So. 2d at 305.  Noting this Court’s recent decision in
Taylor v. School Board of Brevard County, 888 So. 2d 1 (Fla. 2004), the Third
District concluded that Vega and the county’s traffic signal repair personnel were
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not assigned primarily to unrelated works.  See Aravena, 886 So. 2d at 304-05.
The district court explained:
[I]t cannot be said that these co-employees worked on entirely
different projects.  Nor can it be clearly demonstrated that the work of
the County’s traffic signal repair personnel, whose job was to regulate
vehicular and pedestrian traffic, was unrelated to the work of the
school crossing guard, whose job also was to regulate vehicular and
pedestrian traffic at the same intersection.  To hold otherwise would
contravene the overall legislative intent of the workers’ compensation
law, which “was meant to systematically resolve nearly every
workplace injury case on behalf of both the employee and the
employer.”   Taylor, 888 So. 2d at 4.
Aravena, 886 So. 2d at 305.
ANALYSIS
The issue before the Court is whether county employees who work at
different physical locations for different departments, have different supervisors,
and perform different duties and functions in their primary assignments fall within
the exception to the general immunity provision of Florida’s Workers’
Compensation Law, which provides that immunity is not available in cases
involving coemployees that are “assigned primarily to unrelated works.”   §
440.11(1).   Both the trial court and district court decided this issue as a matter of
law based on the undisputed facts.  Thus, our review is de novo.  See generally
Blanton v. City of Pinellas Park, 887 So. 2d 1224, 1226 (Fla. 2004).
Conflict between Aravena and Kelly
Initially, we address whether an express and direct conflict exists between
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the decision reached in this case and the decision reached by the Fourth District in
Kelly.  The county asserts that there is no conflict.  We disagree.
In Kelly, the Fourth District held that two coemployees, who began and
ended their work days at the same general location but who worked at different
locations and performed different job duties, were assigned primarily to unrelated
works.  See 810 So. 2d at 562.  One employee, Kevin Kelly, worked as a
maintenance equipment operator for the maintenance division at Palm Beach
International Airport.  Kelly began and ended his day at 3700 Belvedere Road,
Building G.  See id.   The other employee, Rostant John, was an equipment
mechanic for Palm Beach County’s Fleet Management Division, who usually
worked at the county’s shell rock pit in Boca Raton.  See id.  John began and ended
his day at 3700 Belvedere Road, Building D.
Similar to the coemployees in Kelly, Vega and the traffic signal repair
personnel worked at different locations.  Vega worked for the Miami-Dade County
Police Department and was assigned primarily to work at a specific location as a
school crossing guard.  The traffic signal repair personnel were employees of the
Miami-Dade County Public Works Department and were assigned primarily to
maintain the traffic lights at the numerous intersections throughout Miami-Dade
County.  The Third District’s conclusion that the coemployees had jobs involving
the regulation of vehicular and pedestrian traffic in effect defines “related works”
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as any jobs that are generally related.   The same could be said for the coemployees
in Kelly who were both engaged in the generally related jobs of maintenance.
Further, we note that there was a greater connection between the
coemployees in Kelly than exists in this case.   Unlike Vega and the traffic signal
repair personnel, the coemployees in Kelly began and ended their days at the same
location.   The facts of this case therefore present a stronger argument for
concluding that Vega and the traffic signal repair personnel were assigned
primarily to unrelated works.  The holdings of Aravena and Kelly are
irreconcilable, which is one of the tests for conflict jurisdiction.  See Crossley v.
State, 596 So. 2d 447, 449 (Fla. 1992) (concluding that because the court below
“reached the opposite result on controlling facts which, if not virtually identical,
more strongly dictated” the result reached by the alleged conflict case, a conflict of
decisions existed that warranted accepting jurisdiction).
Florida’s Workers’ Compensation Law
Having concluded that an express and direct conflict exists between this case
and Kelly, we next review Florida’s Workers’ Compensation Law, chapter 440,
Florida Statutes.  The Workers’ Compensation Law is a “comprehensive
scheme . . . that generally provides workers’ benefits without proof of fault and
employers immunity from tort actions based upon the same work place incident.”
Taylor, 888 So. 2d at 2.  The Legislature has declared its intent that
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the Workers’ Compensation Law be interpreted so as to assure the
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.  It is the specific
intent of the Legislature that workers’ compensation cases shall be
decided on their merits.  The workers’ compensation system in
Florida is based on a mutual renunciation of common-law rights and
defenses by employers and employees alike.  In addition, it is the
intent of the Legislature that the facts in a workers’ compensation case
are not to be interpreted liberally in favor of either the rights of the
injured worker or the rights of the employer.  Additionally, the
Legislature hereby declares that disputes concerning the facts in
workers’ compensation cases are not to be given a broad liberal
construction in favor of the employee on the one hand or of the
employer on the other hand, and the laws pertaining to workers’
compensation are to be construed in accordance with the basic
principles of statutory construction and not liberally in favor of either
employee or employer.  It is the intent of the Legislature to ensure the
prompt delivery of benefits to the injured worker.
§ 440.015, Fla. Stat. (2001).
Section 440.09(1), Florida Statutes (2001), provides that “[t]he employer
shall pay compensation or furnish benefits . . . if the employee suffers an accidental
injury or death arising out of work performed in the course and the scope of
employment.”   (Emphasis supplied.)  Section 440.10, Florida Statutes (2001), sets
forth the employer’s liability for compensation and section 440.11(1) provides that
this liability is “exclusive and in place of all other liability” as to third-party
tortfeasors and employees, save for certain legislatively created exceptions.
The immunity afforded to the employer under section 440.11(1) also extends
to “each employee of the employer when such employee is acting in furtherance of
the employer’s business.”  However, this coemployee immunity does not apply
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to an employee who acts, with respect to a fellow employee, with
willful and wanton disregard or unprovoked physical aggression or
with gross negligence when such acts result in injury or death or such
acts proximately cause such injury or death, . . . [or] to employees of
the same employer when each is operating in the furtherance of the
employer’s business but they are assigned primarily to unrelated
works within private or public employment.
§ 440.11(1) (emphasis supplied).  Thus, if one of these exceptions applies, the
injured employee can seek remuneration from a coemployee despite the fact that
the injury arose out of the scope of employment.1
In cases where the employer is a governmental entity such as a county, the
coemployee tortfeasor is immune from personal liability for torts under section
768.28(9)                                                                                (a), Florida Statutes (2005), which requires that any civil action for the
employee’s negligence be maintained against the governmental entity.  Under this
provision, any negligence claim arising under the unrelated works exception
against a public coemployee must be brought against the governmental entity
employer.   See Holmes County Sch. Bd. v. Duffel, 651 So. 2d 1176, 1179 (Fla.
1995); see also Taylor, 888 So. 2d at 7 (Lewis, J., concurring in result only)
1.   The defense of immunity is an affirmative defense that must be raised by
a defendant.  See Carib Ocean Shipping, Inc. v. Armas, 854 So. 2d 234, 235 (Fla.
3d DCA 2003) (holding that the trial court abused its discretion by denying the
defendant’s motion to amend its answer to include the affirmative defense of
workers’ compensation immunity).  The unrelated works exception to an immunity
defense is an avoidance that must be plead and proved by the plaintiff.  See Fla. R.
Civ. P. 1.100(a) (“If an answer . . . contains an affirmative defense and the
opposing party seeks to avoid it, the opposing party shall file a reply containing the
avoidance.”).
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(explaining that a public employee “may seek recovery from the otherwise immune
employer, because the employer is not being sued in its capacity as employer, but
rather is being sued as a surrogate defendant based on the negligent acts of the
public co-employee”).
Case Law Interpreting the Unrelated Works Exception
The scope of the unrelated works exception has been addressed by all of the
district courts of appeal.  See, e.g., Kelly, 810 So. 2d at 561-62; Taylor v. Sch. Bd.
of Broward County, 790 So. 2d 1156, 1157-58 (Fla. 5th DCA 2001), approved,
888 So. 2d 1, 6 (Fla. 2004); Lopez v. Vilches, 734 So. 2d 1095, 1096-98 (Fla. 2d
DCA 1999), disapproved of by Taylor v. Sch. Bd. of Brevard County, 888 So. 2d
1, 6 (Fla. 2004); Dade County Sch. Bd. v. Laing, 731 So. 2d 19, 20 (Fla. 3d DCA
1999); Vause v. Bay Med. Ctr., 687 So. 2d 258, 261-63 (Fla. 1st DCA 1996).
Prior to this Court’s decision in Taylor, the district courts had been split as to the
appropriate test for determining whether coemployees were assigned primarily to
unrelated works.  The First, Third, and Fifth District Courts of Appeal applied a
broad “same project” test in determining whether coemployees were assigned
primarily to unrelated works.  See, e.g., Vause, 687 So. 2d at 263 (“Each individual
defendant was assigned to duties related to the purpose and function of decedent’s
job:  The provision of health care to patients of the medical center.”); Laing, 731
So. 2d at 20 (concluding that the unrelated works exception did not apply because
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the coemployees “were both working on the same project, in the sense that they
were co-employees providing education related services to students”); Taylor, 790
So. 2d at 1157 (agreeing with the trial court’s finding that the coemployees were
not assigned primarily to unrelated works because “they had in common the
provision of transportation services to Brevard County school children”) (internal
quotation marks omitted).
In contrast to the “same project” test, the Second District Court of Appeal in
Lopez applied a narrower bright-line test that focused on the physical location of
the coemployees and the scope of their duties.  See 734 So. 2d at 1097.  The Fourth
District has noted the two differing approaches of the other district courts, which it
described as “(1) a ‘case-by-case approach,’ which examines whether co-
employees were engaged in the same project and were ‘part of a team,’ and (2) a
‘bright-line’ test based on the physical location where the employees were
primarily assigned and the unity of their business purpose.”   Kelly, 810 So. 2d at
562 (citation omitted).  However, the Fourth District has declined to adopt either
approach, concluding in the cases before it that the results were the same under
either test.  See id.; Sch. Bd. of Broward County v. Victorin, 767 So. 2d 551, 554
(Fla. 4th DCA 2000).
In Taylor, this Court attempted to resolve a conflict between the Second
District’s decision in Lopez and the Fifth District’s decision in Taylor.  We
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considered whether a school bus driver and a school bus mechanic were assigned
primarily to unrelated works.  See Taylor, 888 So. 2d at 2.  After noting the
Legislature’s express “admonition that the worker’s compensation law not be
construed liberally in favor of the employee or the employer” and the Legislature’s
“mandate[] that the ordinary rules of statutory construction be invoked,” the Court
concluded that the unrelated works exception must be interpreted narrowly.  Id. at
4-5.  We then set forth the analysis to be used to determine whether the unrelated
works exception applies in a given case.  In doing so, we did not adopt either the
case-by-case “same project” test or the bright-line test.  Rather, we concluded “that
the exception to this scheme for unrelated works should be applied only when it
can clearly be demonstrated that a fellow employee whose actions caused the
injury was engaged in works unrelated to the duties of the injured employee.”  Id.
at 5 (emphasis supplied).  We explained:
While we would like to be more precise in providing guidance to
those initially charged with deciding disputes based upon this
exception, we are limited by our lack of precise knowledge of the
legislative intent behind the exception and the reality that we could
not hope to contemplate the myriad of factual circumstances that may
give rise to the issue.
Id. (emphasis supplied).  Applying these principles, we held that the school bus
driver and the school bus mechanic were not engaged in unrelated works because
they “shared a common goal of providing safe transportation to the students.”  Id.
at 6.
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In reaching the decision in Taylor, we disapproved the Second District’s
decision in Lopez.  See id.   In Lopez, a funeral home worker was injured when the
vehicle he was operating malfunctioned.  See 734 So. 2d at 1096.  The funeral
home worker filed suit against three coemployees, alleging that his injury was
sustained as a result of their negligent maintenance of the vehicle.  See id.  The
Second District held that the undisputed facts did not preclude the unrelated works
exception and, thus, reversed the summary judgment entered in favor of the
defendants.  See id. at 1097.  The Second District reasoned that “[t]he physical
location of [the coemployees’] work appears to be separate and their specific
purpose, general funeral home duties versus vehicle maintenance, appear distinct.”
Id.  This Court disagreed and instead adopted the reasoning of the dissent in Lopez,
which focused on the fact that all of the employees had duties related to the
vehicle:
I disagree and would affirm the trial court’s determination that
the unrelated works exception to the exclusivity of workers’
compensation benefits is not applicable to this situation.  Lopez,
Vilches, Brito and Kelly work for the same employer. All of them
have some duties related to the van in question.  Lopez drives the van
to facilitate the moving of flowers from the chapel to the cemetery.
The other employees use the van in their duties of maintaining and
repairing the vehicles owned or leased by the employer.  Under these
circumstances, it cannot be said that the co-employees are engaged in
unrelated works.  See Abraham v. Dzafic, 666 So. 2d 232 (Fla. 2d
DCA 1995).
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Taylor, 888 So. 2d at 6 (emphasis supplied) (quoting Lopez, 734 So. 2d at 1098)
(Quince, Associate Judge, dissenting).
This Case
In this case, the Third District held that the unrelated works exception did
not apply because
it cannot be said that [Vega and the traffic signal repair personnel]
worked on entirely different projects.  Nor can it be clearly
demonstrated that the work of the County’s traffic signal repair
personnel, whose job was to regulate vehicular and pedestrian traffic,
was unrelated to the work of the school crossing guard, whose job
also was to regulate vehicular and pedestrian traffic at the same
intersection.
Aravena, 886 So. 2d at 305.
Although the Third District claimed to adhere to our recent pronouncement
in Taylor, we conclude that the Third District’s decision is inconsistent with the
reasoning of Taylor.  The Third District initially used the case-by-case, same
project analysis despite the fact that we did not approve of this approach in
Taylor.2  Further, to comport with Taylor’s holding that the exception applies only
“when it can clearly be demonstrated that a fellow employee whose actions caused
2.   We note that the “same project” language is derived from earlier cases
involving construction sites, which did not analyze the words used in the statute.
See Abraham, 666 So. 2d at 233; Johnson v. Comet Steel Erection, Inc., 435 So. 2d
908, 909 (Fla. 3d DCA 1983).  In concluding that the unrelated works exception
did not apply to coemployees who were “employed on-site in the same
construction project,” the Johnson court relied only on “prior cases [that] indicate
the broad scope of immunity afforded a subcontractor for injuries to an employee
of a general contractor.”   435 So. 2d at 909.  Abraham in turn relied on Johnson.
See 666 So. 2d at 233.
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the injury was engaged in works unrelated to the duties of the injured employee,”
the Third District resorted to an overly broad definition of the coemployees’ jobs
as “regulat[ing] vehicular and pedestrian traffic” without considering other factors.
It is true that in Taylor this Court broadly categorized the duties of the
school bus driver and the school bus mechanic by stating that these coemployees
shared a more general “goal of providing safe transportation to the students.”   888
So. 2d at 6.  However, in that case both the school bus driver and the school bus
mechanic had duties relating to the same equipment—the school bus’s wheelchair
lift.  See id. at 4.  In addition, both the school bus driver and the school bus
mechanic worked out of the same facility.  See id.   Similarly, this Court’s
conclusion in Lopez that the coemployees were not assigned primarily to unrelated
works was supported by the fact that each had duties related to the use of the
funeral home vehicle.  See 734 So. 2d at 1096.  As in Taylor, the duties of the
coemployees in Lopez were linked by the connection to the very equipment that
caused the injury.
In this case, unlike the coemployees in Taylor, Vega and the traffic signal
repair personnel did not work out of the same facility or with the same equipment.
Therefore, the Third District’s reliance solely on a broad definition of the
coemployees’ duties, without regard to any other factors, to conclude that the
employees were not engaged primarily in unrelated works is not supported by
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Taylor.
The Third District’s reasoning is also inconsistent with that court’s most
recent decision addressing the unrelated works exception.  See Lluch v. American
Airlines, Inc., 899 So. 2d 1146 (Fla. 3d DCA 2005).  There, Lluch was a
custodian/janitor employed by ABM Janitorial Services, which had a contract with
American Airlines (American) to provide cleaning services for American at Miami
International Airport.  See id. at 1146.  Lluch was injured when Carlton Service, an
American baggage handler who was operating an American tractor pulling several
baggage carts, hit a trash cart causing the cart to fall on top of Lluch, breaking his
foot.  See id. at 1147.  After concluding that American was Lluch’s statutory
employer under the workers’ compensation law, the Third District determined that
the trial court erred in granting summary judgment in favor of American and
Service based on coemployee immunity.  See id. at 1147-48.3
In analyzing the unrelated works exception based on this Court’s decision in
Taylor, the Third District indicated that it was persuaded by Justice Lewis’s
3.   In reversing summary judgment in favor of American and Service based
on workers’ compensation immunity, the Third District concluded that was a
factual issue.  Id. at 1148.  We do not decide whether the Third District correctly
held that the applicability of the unrelated works exception should be decided as an
issue of fact.  Indeed, almost all of these unrelated works cases have been decided
based on undisputed facts as a matter of law.  We discuss Lluch simply to
demonstrate that under similar circumstances to those presented in this case, the
Third District did not foreclose the application of the unrelated works exception.
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separate opinion in Taylor, in which he proposed applying “a consolidated
‘physical location/business purpose’ test and . . . ‘same project’ test.”  Id. at 1149.4
4.   Although a majority of the Court in Taylor declined to set forth a specific
test for evaluating the unrelated works exception, in a concurring in result only
opinion Justice Lewis articulated the parameters he would have adopted:
First, if co-employees are not assigned to work at the same
physical business location, and the work being performed at the injury
location is not part of a team or the same joint project, I would
conclude that the unrelated works concept should apply as a matter of
law.  Second, even if the employees are not assigned to work at the
same physical business location but are directed to perform tasks at
the injury location and the work being performed is part of a team or
specific business project with co-employees, the exception would not
apply with regard to the particular team or specific project co-
employees.  Third, if the co-employees are assigned to work at the
same physical business location and the work being performed at the
injury location is part of a team or directed to the same joint business
project, the unrelated works exception would not apply.  Finally, even
if the co-employees are assigned to work at the same physical
business location where the injury occurs but the work being
performed is not part of a team or directed to the same joint business
project, I would conclude that the unrelated works exception would be
applicable as a matter of law. . .
Within the final category, namely when the co-employees are
assigned to work at the same physical location where the injury occurs
but the work being performed there is not part of a team or directed to
the same joint business purpose, the application of the unrelated
works exception is dependent upon a number of factors, including the
size of the facility, the diversity of the acts performed there, and the
relationship of the diverse activities being performed at the location.
These factors must be considered when a court is trying to determine
when work is either related or unrelated.  A large, single-owner
facility with voluminous employees, such as a university, that consists
of diverse activities and diverse purposes warrants different
consideration than a small, single-structure location with a dominant
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Applying the “physical location/business purpose” test, the Third District
explained that although
both Lluch and Service worked at the airport in the area where the
baggage is unloaded from the airplanes[,] . . .   Lluch’s job required
him to be elsewhere for a significant part of his work day because he
had to remove the trash from American offices and haul it away to the
garbage dumpsters.  He was not required to clean under the baggage
carousel on a regular basis.  Lluch had nothing to do with Service and,
in fact, had no idea who Service was.
Lluch, 899 So. 2d at 1149 (emphasis supplied).   The Third District also concluded
that Lluch and Service were not part of the same team because
they had two different employers.  Lluch is employed by ABM, and
Service is employed by American.  Service is a baggage handler, and
Lluch cleans and removes trash.  Lluch’s testimony reveals that the
two men had never met each other before the date of the accident.
They received different instructions from different people, unlike the
scenario in Sanchez v. Dade County School Board, 784 So. 2d 1172,
1173 (Fla. 3d DCA 2001), review dismissed as improvidently granted,
889 So. 2d 778 (Fla. 2004).  The affidavit of Clifford Coll stated that
ABM has responsibility for keeping the baggage loading area and
conveyor belt in “clean debris free condition.”  In opposition, Lluch
stated that he has nothing to do with the operation, cleaning or
maintenance of the baggage carousel, although sometimes ABM
requested that he clean the floor area adjacent to the carousel.   Lluch
and Service were not true fellow employees.
Id. at 1149-50 (emphasis supplied).
Similar to the facts presented in Lluch in which the coemployees worked for
different employers, in this case Vega worked for the county’s Police Department
unitary purpose and only minor variations in duties, such as custodial
staff to support the singular activity.
Taylor, 888 So. 2d at 14-15 (Lewis, J., concurring in result only).
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and the traffic repair signal personnel worked for the county’s Department of
Public Works, each of which are headquartered at different locations.  Vega and
the traffic signal repair personnel were not supervised by the same individuals and
did not have similar duties.  In addition, Vega neither knew nor had any interaction
with employees of the Department of Public Works.   We note that even at the time
of the tragic accident, Vega’s responsibilities of ensuring safe passage for school
children had nothing to do with the regulation of the traffic lights.
In fact, the only significant distinction between the factual scenarios in this
case and Lluch is that unlike the coemployees in Lluch, Vega and the traffic signal
repair personnel did not work at the same location.   Although location is not
dispositive, the fact that the coemployees in this case worked primarily at different
locations further supports a conclusion that the coemployees in this case were not
assigned to related works.
Finally, the Third District’s conclusion in this case is inconsistent with all of
the other district court decisions that addressed this question.  The district courts
have consistently focused on the physical business location and the coemployees’
job duties in determining whether the unrelated works exception applies.  Until the
Third District’s decision in this case, no district court of appeal had held that
coemployees that were neither assigned to work at the same location nor assigned
similar job duties were engaged in related works.
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By using overly broad definitions of the same project and the coemployees’
job duties, the Third District ignored the other factors considered in Lluch.  Its
analysis also ignores the fact that the exception assumes that the coemployees are
operating in “furtherance of the employer’s business,” § 440.11(1), and, thus, are
all working on the same general project.    Accordingly, we conclude that the Third
District erred in holding that Vega and the traffic signal repair personnel were
engaged in related works.
Factors Governing the Unrelated Works Analysis
Although we declined to adopt a specific test for determining the
applicability of the unrelated works exception in Taylor, we recognize that we
should provide further guidance to the trial courts and the district courts of appeal.
We held in Taylor that the exception should be narrowly tailored.  However, we
did not intend to eviscerate the exception.  Thus, we must return to the statutory
language employed in section 440.11(1) to determine the scope of the exception
and its application.
In deciding more precisely what the Legislature intended by the term
“assigned primarily to unrelated works,” we focus on the use of the words
“assigned primarily.”   § 440.11(1).  We conclude that the phrase “assigned
primarily to unrelated works” in section 440.11(1) has both an operational and a
locational component.  Thus, where coemployees are assigned primarily to
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different departments and different locations, and are assigned primarily to
different job functions, the fact that the coemployees may have some broad
overlapping responsibilities is not dispositive.
Although we stated in Taylor that “we could not hope to contemplate the
myriad of factual circumstances” that might arise in applying the unrelated works
exception, 888 So. 2d at 5, a review of the district court decisions shows common
factors used in the analysis of the applicability of the unrelated works exception.
These include:   (1) whether the coemployees work at the same location, (2)
whether the coemployees must cooperate as a team to accomplish a specific
mission; (3) the size of the employer; (4) whether the coemployees have similar
job duties, (5) whether the coemployees have the same supervisor; and (6) whether
the coemployees work with the same equipment.
In a case such as this one, in which the coemployees do not work at the
same location, it is more likely that the coemployees will be considered to be
assigned primarily to unrelated works.  However, in making this determination the
courts should also consider whether the coemployees must cooperate as a team to
further a specific mission of the employer, not whether they further the same
general mission of the employer.  In deciding whether coemployees must
cooperate as a team to further a specific mission of the employer, it may be helpful
to look to the last four factors enumerated above: the size of the employer and
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whether the coemployees work with the same equipment, have the same
supervisor, or have similar duties.
Further, although we recognize that when employees work at the same
location, it is more likely that they will not be considered to be assigned primarily
to unrelated works,5 we caution that in those circumstances, the courts must also
consider whether the work being performed is part of a team effort.  Clearly, as
Justice Lewis observed, a large university that has thousands of employees across
many acres warrants different consideration than a small, single-structure location
such as an elementary school, where everyone from teachers to custodial staff may
be considered part of the same team.  See Taylor, 888 So. 2d at 15 (Lewis, J.,
concurring in result only).
Until the Legislature determines that it should further define the unrelated
works exception, courts will continue to struggle with its application.  However,
5.   In many of the district court decisions, an important factor in the analysis
of whether the unrelated works doctrine is applicable appears to be whether the
coemployees were assigned to the same work location.  Had the Legislature
intended to allow all employees who did not work at the same location to sue a
coemployee and preclude all employees who did work at the same location from
suing a coemployee, the Legislature could have used more precise language to
effectuate this intent.  For example, as noted by the county, an earlier version of
what eventually became the unrelated works exception in section 440.11(1)
provided that an employee could sue a fellow employee where “they are not
assigned to the same job site or are assigned primarily to unrelated works.” Fla. S.
Comm. on Com., CS for SB 636 (1978).
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we hope that the factors we have identified will provide guidance to the lower
courts in applying this exception narrowly without eviscerating it.
CONCLUSION
For the reasons provided herein, we hold that coemployees who work for
different departments and at different locations, answer to different supervisors,
and have primary assignments involving different duties and functions are engaged
in unrelated works triggering the exception to workers’ compensation immunity in
section 440.11(1).  Accordingly, we conclude that Vega, who was working as a
school crossing guard, and the traffic signal repair personnel charged with
maintaining the traffic signals at the intersection where she was working were
engaged in unrelated works and that her husband’s wrongful death claim is not
barred by worker’s compensation immunity.  We therefore quash the decision of
the Third District, which held to the contrary, and remand for entry of judgment for
Aravena on the jury’s verdict in his favor.
It is so ordered.
ANSTEAD, QUINCE, and CANTERO, JJ., concur.
BELL, J., specially concurs with an opinion.
LEWIS, J., concurs in result only with an opinion.
WELLS, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
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BELL, J., specially concurring.
Given the absence of any statutory definition for the unrelated works
exception, I concur with the majority’s definition.  However, as Justice Wells, I too
believe that the question of what is “unrelated work” is a question of law, not a
question of fact.  I also join his call for the Legislature to address whether it
intended the unrelated work exception to result in a county employee receiving
from the county both workers’ compensation benefits and common law tort
damages for injuries suffered in the same work-related accident.
LEWIS, J., concurring in result only.
I concur in result based on my continued belief that this Court should adopt
the analytic parameters I previously outlined in Taylor v. School Board of Brevard
County, 888 So. 2d 1, 14-15 (Fla. 2004) (Lewis, J., concurring in result only).
Under the analytical framework I previously proposed in Taylor, the unrelated
works exception would apply as a matter of law in the instant case because Vega
and the traffic repair personnel were neither assigned to work at the same location
nor were they working together from an operational perspective nor were they part
of the same team or same joint project.  See id.   However, because the majority’s
analysis is very similar to that which I proposed in Taylor and ultimately concludes
that the exception applies, I concur with the result.
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WELLS, J., dissenting.
I dissent.  I would approve the decision of the Third District Court of Appeal
in the present case.
I cannot join the majority because I conclude that the majority opinion is at a
substantial variance from the majority opinion which we issued in 2004 in Taylor
v. School Board of Brevard County, 888 So. 2d 1 (Fla. 2004).  In Taylor, the
majority opinion stated:
Hence, we are bound to apply these principles in our analysis.
We initially note that, in one sense, all employees of the same
employer could always be considered engaged in related works since
they are all charged to carry out the mission of the employer.   At the
same time, however, some distinction could always be drawn between
the work of most employees so as to make their work unrelated.
Because the unrelated works exception set out in section 440.11(1)
represents an exception to the broad exclusive remedy provisions of
the Florida Workers’ Compensation Law, we conclude that under the
ordinary rules of statutory construction we must interpret it narrowly.
See Samara Dev. Corp. v. Marlow, 556 So. 2d 1097, 1100 (Fla. 1990)
(“[I]t is a well-recognized rule of statutory construction that
exceptions or provisos should be narrowly and strictly construed.”)
888 So. 2d at 5.  We further stated:
A contrary holding giving wide breadth to the rare exceptions
to workers’ compensation immunity would merely erode the purpose
and function of the Workers’ Compensation Law as established by the
Legislature.  We agree with the observations of the Fourth District in
its recent decision in Fitzgerald v. South Broward Hospital District,
840 So. 2d 460, 463 (Fla. 4th DCA 2003), that the unrelated works
exception should be narrowly construed because “[a]n expansive
construction would obliterate the legislative intent that the system
operate at ‘a reasonable cost’ to the employer” and that to decide
otherwise would “erode the immunity provided under the worker’s
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compensation law . . . leading to a profusion of suits and a
proliferation of costs.”
888 So. 2d at 6.  The present majority expands the exception rather than following
these principles and construing the exception narrowly.
I conclude that the Third District in this case followed our decision in Taylor
in holding:
In the instant case, it cannot be said that these co-employees
worked on entirely different projects.  Nor can it be clearly
demonstrated that the work of the County’s traffic signal repair
personnel, whose job was to regulate vehicular and pedestrian traffic,
was unrelated to the work of the school crossing guard, whose job
also was to regulate vehicular and pedestrian traffic at the same
intersection.  To hold otherwise would contravene the overall
legislative intent of the workers’ compensation law, which “was
meant to systematically resolve nearly every workplace injury case on
behalf of both the employee and the employer.”  Taylor, 888 So. 2d at
4.
Miami-Dade County v. Aravena, 886 So. 2d 303, 305 (Fla. 3d DCA 2004).  The
district court should not be quashed for following this Court’s majority opinion.
By broadening this exception so that many county employees will not be
subject to workers’ compensation immunity, the majority subjects counties to
many employees collecting both workers’ compensation benefits and common law
damages from counties.  This is a result of the present decision in combination
with this Court’s 1995 decision in Holmes County School Board v. Duffell, 651
So. 2d 1176 (Fla. 1995).  The conclusion in Holmes County only made sense
because the unrelated works exception was very narrow and only a few county
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employees would have the right to both.   In light of the present decision, Justice
Grimes’ dissent, which was joined by Justices Overton and Harding, looks to be
prophetic and the wiser view.  I do not believe that the Legislature intended that
the unrelated works exception expose the counties to the claims of many
employees for both workers’ compensation benefits and common law damages.
I do agree with the majority that the Legislature should define “unrelated
works” so that the concept has a statutory definition.  I believe that the Legislature
needs to also specifically address the Holmes County decision and expressly state
whether a county employee can collect workers’ compensation benefits and sue the
county for common law tort damages arising from the same work-related accident.
Finally, I do not agree with the majority’s reliance on Lluch v. American
Airlines, Inc., 899 So. 2d 1146 (Fla. 3d DCA 2005).  I cannot agree with that
decision’s holding that what is an unrelated work is a question of fact.  The issue is
a question of law.  This Court has treated the issue as a question of law.  I
appreciate the majority’s footnote 3, majority op. at 15, which states that the
majority does “not decide whether the Third District correctly held that the
applicability of the unrelated works exception should be decided as an issue of
fact.”  My concern is that by not deciding this issue, the majority is creating
inequities for workers and application problems in the trial courts and appellate
courts.  The Third District’s decision in Lluch creates a situation in which different
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juries can conclude that the same jobs are both within the unrelated works
exception and not within the unrelated  works exception.  This will obviously lead
to inequitable results.  Whether the exception applies or does not apply should
uniformly be a matter of law based on the Taylor standard for application of the
exception so as to avoid inequities among workers and to avoid further confusion
in the trial courts and appellate courts.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict
Third District - Case No. 3D03-2482
(Miami-Dade County)
Martin E. Leach of Feiler, Leach and McCarron, PL, Coral Gables, Florida,
for Petitioner
Robert A. Ginsburg, Miami-Dade County Attorney, Jeffrey P. Ehrlich, and Susan
Torres, Assistant County Attorneys, Miami, Florida,
for Respondent
Melinda L. McNichols, Miami, Florida, on behalf of the School Board of Miami-
Dade County, Florida; and Margaret E. Sojourner of Langston, Hess, Bolton,
Znosko and Shepard, Maitland, Florida, on behalf of Florida Defense Lawyers
Association,
for Amici Curiae
- 27 -

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