Gerber v. Vincent's Men's Hairstyling, Inc.
57 So. 3d 935
Fla. Dist. Ct. App.2011Background
- Plaintiff, a receptionist, alleged battery by Campo and negligent retention/supervision and vicarious liability by the Shop.
- Defendants moved to dismiss, asserting the claim sounded in Title VII/FCRA sexual harassment and required pre-suit procedures.
- Trial court granted dismissal and awarded attorney’s fees under §57.105, Florida Statutes (2009).
- Court held dismissal foreclosed viable common law tort claims and was improper, warranting reversal and remand.
- Plaintiff had sought to pursue common law torts; she could amend later to add statutory harassment claims after EEOC process if desired.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the dismissal was proper given overlapping common law and statutory claims | Taylor | Campo | Dismissal improper; claims allowed to coexist and may be pursued. |
| Whether workers’ compensation exclusivity bars the common law tort claims | Taylor battery claims not barred | Exclusive remedy under §440.11; cannot recover via common law | Exclusivity does not bar the battery claim arising from sexual harassment; Byrd precedent acknowledged. |
| Whether the trial court erred in awarding attorney’s fees under §57.105 | Fees based on erroneous prejudice from pre-suit requirement | Fees proper if pre-suit procedures were required | Reversed; no attorney’s fees awarded under §57.105. |
Key Cases Cited
- Byrd v. Richardson-Greenshields Sec., Inc., 552 So.2d 1099 (Fla.1989) (workers’ comp exclusivity does not bar intentional battery in harassment context)
- Doe v. Footstar Corp., 980 So.2d 1266 (Fla.2d DCA 2008) (disagreeing with Doe on exclusivity impact; battery not barred by exclusivity)
- Rivera v. Torfino Enters., Inc., 914 So.2d 1087 (Fla.4th DCA 2005) (harmful effects of harmonizing overlapping statutory claims)
- Underwood v. Rhone-Poulenc Rorer Pharm., Inc., 890 So.2d 429 (Fla.4th DCA 2004) (overlap between Whistleblower Act and FCRA; statutory claims can coexist)
- Gries Inv. Co. v. Chelton, 388 So.2d 1281 (Fla.3d DCA 1980) (finality of dismissal when entire claim struck)
- Gries Inv. Co. v. Chelton, 388 So.2d 1281 (Fla.3d DCA 1980) (finality principle applied to dismissal without prejudice)
- Schwartz v. Zippy Mart, Inc., 470 So.2d 720 (Fla.1st DCA 1985) (employer liability and tort concepts in harassment context)