508 So. 2d 489 | Fla. Dist. Ct. App. | 1987
This is an appeal by the defendant Florida Power and Light Company [hereinafter “FP & L”] from an adverse final judgment in a negligence action. The sole point raised on appeal is that the trial court erred
First, it is undisputed that FP & L paid the plaintiff Carolyn Sue Huwer [hereinafter “Huwer”] workers’ compensation benefits in the amount of $35,392.40 for an injury which she incurred while working as a security guard for The Wackenhut Corporation [hereinafter “Wackenhut”] at FP & L’s Turkey Point nuclear plant. Huwer was an employee of Wackenhut; Wacken-hut was an independent contractor hired by FP & L to guard its facility at Turkey Point.
Second, FP & L is not entitled, as urged, to the workers' compensation exclusivity defense by virtue of its payment of workers’ compensation benefits to Huwer as an otherwise allegedly non-covered employee as defined by Section 440.04, Florida Statutes (1981). This is so because Huwer (a) was never employed by FP & L, and (b) was not otherwise excluded or exempted from the protection of the Workers’ Compensation Act [hereinafter “the Act”]— both of which are circumstances required by the above statute in order for the employer to acquire the exclusivity defense as to tort claims of otherwise non-covered employees. We reject the contrary arguments of FP & L, including the argument that Huwer was an independent contractor and was therefore excluded from protection of the Act under Section 440.-02(2)(d)(1), Florida Statutes (1981). Huwer was an employee of an independent contractor, but was never an independent contractor herself; she was plainly covered by the Act as an employee of Wackenhut. See Gulfstream Land & Devel. Corp. v. Wilkerson, 420 So.2d 587, 590 (Fla.1982); Conklin v. Cohen, 287 So.2d 56, 59-60 (Fla.1973); Smith v. Ussery, 261 So.2d 164 (Fla.1972); Toney Builders, Inc. v. Huddleston, 149 So.2d 38, 40 (Fla.1963).
Third, the trial court did not, therefore, abuse its discretion in refusing to allow FP & L to assert the above affirmative defense because FP & L was not entitled to the proposed defense as a matter of law. See Davis v. Sun First Nat’l Bank of Orlando, 408 So.2d 608, 610 (Fla. 5th DCA 1981), pet. for review denied, 413 So.2d 875 (Fla.1982); Burnside v. McCrary, 384 So.2d 1292, 1293 (Fla. 3d DCA 1980); Wilisch v. Wilisch, 335 So.2d 861, 865 (Fla. 3d DCA 1976). The final judgment under review is accordingly
Affirmed.