In a recent ruling, Florida’s Second District Court of Appeals reversed and remanded a Circuit Court decision regarding the application and scope of “horizontal immunity” in the context of workers’ compensation. Herida v. John Beach & Assoc., Inc. and Gross, 44 Fla. L. Weekly D1892a (Fla. 2d DCA 2019). Specifically, the Court delved into the extent into which the immunity should be statutorily applied in the instance of negligence regarding contractors and subcontractors working at the same construction site. It did this by examining the legislature’s intent, as depicted in the applicable statute, and by referring to prior rulings regarding the interpretation of that statute.
Pursuant to Florida Statute § 440.10, horizontal immunity is afforded when three factors are met: (1) the subcontractor secured workers’ compensation insurance for its employees or the general contractor has secured insurance on the subcontractor’s behalf; (2) all employees of the contractor and subcontractors are providing services on the same project or contract work; and (3) the subcontractor’s own gross negligence is not the major contributing cause of the injury. Thus, when the employee of one subcontractor, or an employee of the contractor, brings a claim against another subcontractor or its employee, and when all three of the above factors are met, horizontal immunity is afforded to defendants.
In the instant case, a residential developer which intended to develop its own land hired both a roadwork company and a surveying company. A roadwork employee brought a negligence cause of action against the surveying company and against its employee, alleging that the surveying employee negligently backed a truck into him while performing work. The lower court found that statutory horizontal immunity was afforded to the surveying company and its employee against the negligence claims of the roadwork employee. The Appellate Court reviewed whether horizontal immunity should have been afforded. The Court hinged its decision on analyzing what the legislature intended by the word “contractor,” as utilized in § 440.10(b), which outlines horizontal immunity.
Florida statute § 440.10(b) states in part, “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 [ . . .].”
Thus, the Appellate Court clarified that in order for a party to be afforded the statutory protection of horizontal immunity, the contractor must be performing work pursuant to a contract. In the instant case, the residential developer owned the land and hired the roadwork company and surveying company for its own benefit, and not pursuant to a contract. Although it’s very plausible that the residential developer may have been a general contractor, it is nonetheless not a contractor for purposes of § 440.10(b). For a party to be considered a contractor under § 440.10(b), the party’s “‘primary obligation in performing a job or providing a service must arise out of a contract.’” Id (quoting Sotomayor v. Huntington Broward Assocs. L.P., 697 So. 2d 1006, 1007 (Fla. 4th DCA 1997) quoting Gator Freightways, Inc. v. Roberts, 550 So. 2d 1117,1119 (Fla. 1989)).
In the instant case, the Appellate Court determined that because the residential developer was not a contractor for purposes of § 440.10(b) horizontal immunity should not be afforded to the surveying company and its employee. Therefore, the injured roadwork employee would not be barred from bringing a negligence cause of action against the surveying company and its employee. This ruling is defining in the realm of personal injury and negligence claims. With year-round construction in Florida, injuries occur often on work sites. Determining whether horizontal immunity is afforded to a party early on, can save tremendous time and resources and even lead to early resolution or denial of claims.