Mirta Moradiellos, etc., Appellant, vs. Gerelco Traffic Controls, Inc., etc., Appellee.
No. 3D14-566
Third District Court of Appeal State of Florida
Opinion filed August 26, 2015
Lower Tribunal No. 10-43079
Opinion filed.
Not final until disposition of timely filed motion for rehearing.
An Appeal from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez, Judge.
Restani, Dittmar, & Hauser, P.A., and Helen Ann Hauser, for appellee.
Before SALTER, EMAS, and LOGUE, JJ.
LOGUE, J.
Arturo Moradiellos, an asphalt surveyor, was run over and killed by a truck owned and operated by his employer while working at night on the Florida Turnpike. His wife, Mirta Moradiellos, in her individual capacity and as representative of the estate (jointly, “the Estate“), sued his employer and various subcontractors for wrongful death. In the order under appeal, the trial court granted final summary judgment in favor of one of the subcontractors, Gerelco Traffic Controls, Inc. (“Gerelco“). We affirm.
FACTS AND PROCEDURAL BACKGROUND
The project on which Mr. Moradiellos was killed entailed the widening of the Florida Turnрike, from north of Sunrise Boulevard to Atlantic Boulevard, a distance of approximately seventeen miles. The general contractor on this Florida Department of Transportation project was Community Asphalt Corporation (“General Contractor“). The General Contractor, in turn, hired various subcontractors including Gerelco. Gerelco was responsible for the repair and maintenance of the еxisting highway lighting during construction.
The accident happened in the dark of night at 3:00 a.m. on December 9, 2009. Mr. Moradiellos‘s job was to determine where road surface markings and traffic lines should be painted after the asphalt was laid down. He worked with a surveying device that looks like a telescope. He was equipped with a headlamp and a flashlight which provided sufficient light for him to perform his work that night. According to his supervisor, who, like Mr. Moradiellos, worked for the General Contractor, the surveying crew typically used a rack of portable lamps provided by another subcontractor that is not a party to this appeal. The portable lamps were
Mr. Moradiellos was hit and killed by a dump truck owned by his employer, the General Contractor. Shortly before the accident occurred, the dump truck was stationed a mile north of him, also in thе northbound lanes. The driver was told to take the truck to the same area where Mr. Moradiellos was working. The driver was specifically instructed to take the southbound lanes south below the work site and approach the work area driving north on the northbound lanes. Instead, he drove the truck backwards going south on the northbound lanes for over a mile, without any outside assistance to guide him while operating in reverse, even though doing so violated company policy.
In the course of backing up, the truck ran over and killed Mr. Moradiellos. Mr. Moradiellos was facing away from the truck and speaking on the radio with his supervisor when the accident occurred. According to the supervisor, no one expected equipment to come south in the closed northbound lanes. Within fifty feet of the accident was a high mast street light that was not working.
Following Mr. Moradiellos’ death, the Estate filed suit against multiple parties involved on the project including Gerelco. The Estate‘s claim against Gerelco focused on Gerelco‘s failure to keep the high mast light near the accident in working order.
Gerelco was the subcontractor responsible for repair and maintenance of the high mast and other traffic street lights on the project. Gerelco was clearly on notice that the mast light was out, as was the State of Florida, the General Contractor, and other contractors. In fact, on May 14, 2008, pursuant to instructions, Gerelco had taken the light down so a temporary road could be built over the place where the light stood. On October 16, 2009, Gerelco put the light back up and reconnected it to its power source. However, the light failed to function, apparently becausе the conduit and wire that connected the light to its power source had been crushed or cut during the course of constructing the temporary road. Inspectors noted and told Gerelco at least four times that the subject light (and other lights along the widening project) were not lit and needed to be fixed.
In fact, on December 1, 2009, seven days before the accident, a Gerelco crew had attempted to activate the light by changing its power source from its existing lines and conduit, which were damaged at an unknown place, to the electrical circuit that powered more modern street lights recently installed on a nearby ramp. Before that work was finished, however, the crew was tasked to repair a light problem in the area of a toll booth, which Gerelco decided was a higher priority. In total, the light remained out for almost a year and half before the accident occurred.
The original complaint was filed on August 10, 2010. Approximately three year and a half years later, on January 14, 2014, the court heard Gerelco‘s motion for summary judgment which was based on the contention that it was immune from suit under the workers’ compensation law. In response to the summary judgment, the Estate argued that Gerelco was liable under the unrelated works and the gross negligence exceptions to immunity. The
ANALYSIS
A. Unrelated Works
The Estate first argues that Gerelco can be answerable in tort for simple negligence because Gerelco‘s actions come within the unrelated works exception to workers’ compensation immunity. On this point, the threshold issue is whether the unrelated works exception to immunity applies to a clаim by an employee of the contractor, like Mr. Moradiellos, against a subcontractor who secured workers’ compensation insurance for its employees, like Gerelco. We hold that it does not. We reach this conclusion based on the following analysis.
First, the unrelated works exception applies only to fellow “employees.” The governing statute‘s language clearly limits the unrelated works excеption to employees. The statute first discusses an employer‘s liability to pay statutory benefits to injured employees and provides that such liability is exclusive, and therefore, the employer is immune from other claims by injured employees, unless the employer failed to secure payment of the statutory benefits or unless the employer commits an intentional tort as defined in the statute.
The same immunities from liability enjоyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer‘s business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable 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, nor shall such immunities be applicable 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.
The unrelated works language highlighted above is specifically contained in the provision dealing with immunity for employees and, as such, applies only to employees. Vallejos v. Lan Cargo S.A., 116 So. 3d 545, 551 (Fla. 3d DCA 2013) (holding the “unrelated works” exception found in
That the “unrelated works” exception applies only to employees is important because the statutory definition of “employee” expressly excludes a subcontractor who has secured payment of compensation coverage for its employees. The statutory definition reads in pertinent part:
All persons who are being paid by a construction contractor as a subcontractor, unless the subcontractor has validly elected an exemption as permitted by
this chapter, or has otherwise secured the payment of compensation coverage as a subсontractor, consistent with s. 440.10 , for work performed by or as a subcontractor.
Because the unrelated works provision applies only to “employees,” and Gerelco, as a subcontractor who secured the payment of compensation, is not an “employee,” it follows that Gerеlco is not a fellow employee subject to the unrelated works exception to immunity.
This conclusion is separately confirmed by reading
After the 2003 amendment,
(e) A subcontractor providing services in conjunction with a contractor on the same project or contract work is not liable for the payment of compensation to the employees of another subcontractor or the contractor on such contract work and is protected by the exclusiveness-of-liability provisions of s. 440.11 from any action at law or in admiralty on account of injury to an employee of another subcontractor, or of the contractor, provided that:
1. The subcontractor has secured workers’ compensation insurance for its employees or the contractor has seсured such insurance on behalf of the subcontractor and its employees in accordance with paragraph (b); and
2. The subcontractor‘s own gross negligence was not the major contributing cause of the injury.
(emphasis added).
The legislative staff report explained that the purpose of these changes was to provide the following:
[I]mmunity to a subcontractor from lawsuits by employees of another subcontractor or the contractor, if the subcontractor is providing services in conjunction with a contractor on the same project or contract work, under certain conditions. The conditions are that the subcontractor or contractor has secured workers’ compensation coverage for the subcontractor‘s employees and the subcontractor‘s own gross negligence was not the major contributing causе of the injury.
Banking & Ins. Comm., S. Staff Analysis & Econ. Impact Statement, SB 50-A, at 5 (Fla. May 19, 2003). Case law confirms that the purpose of this new language was “to restore subcontractor immunity from tort claims brought by either a general contractor or another subcontractor‘s employee (vertical and horizontal immunity).” Ramcharitar v. Derosins, 35 So. 3d 94, 97 (Fla. 3d DCA 2010).
As is apparent, the provision of the law providing immunity to subcontractors has an exception to immunity for gross negligence, but, unlike the specific provision for fellow employees, does not have an exception
Accordingly, we hold that the current versions of
B. Gross Negligence
The second issue involves the theoretically clear, but sometimes difficult-to-apply, distinction between simple negligence and gross negligence. We hold that the trial court properly entered summary judgment on the issuе of gross negligence.
“Summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings.” Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006). At both the trial and appellate level, all evidence and inferences from the evidence must be taken in the light most favorable to the non-moving party. See, e.g., Fla. Bar v. Rosenberg, 40 Fla. L. Weekly S306, S307 (Fla. May 28, 2015); Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 259 (Fla. 2002). Summary judgment is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve all such factual disputes and inferences favorably to the non-moving party, the non-moving party still could not prevail at trial
As discussed above, because Gerelco is a subcontractor who secured compensation, Gerelco is entitled to immunity unless the accident was caused by its gross negligence.
The difference between simple and gross negligence has beеn described as follows:
[S]imple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons or property whereas gross negligence is that course of conduct which a reasonable and prudent man would know would probably and most likely result in injury to persons or property. To put it another way, if the course of conduct is such that the likelihood of injury to other рersons or property is known by the actor to be imminent or “clear and present” that negligence is gross, whereas other negligence would be simple negligence.
Weller v. Reitz, 419 So. 2d 739, 741 (Fla. 5th DCA 1982) (citations omitted). Thus, gross negligence requires: “(1) circumstances constituting an imminent or clear and present danger amounting to a more than normal or usual peril, (2) knowledge or awareness of the imminent danger on the part of the tortfeasor, and (3) an act or omission that evinces a conscious disregard of the consequences.” Vallejos, 116 So. 3d at 552.
The fact that a street light on a highway is not functioning creates a certain level of danger by increasing the possibility that diminished lighting conditions may play a role in causing an accident. The widening of the highway, however, meant that a portion of the street lights would be out of service at any one time. The undisputed evidence indicated the hеavy equipment and digging, which occurred in the normal course of construction, caused conduits to be crushed, wires cut, and fiber optics destroyed along the entire project. In addition, the widening of the highway sometimes required the intentional deactivation of lights, as occurred with the high mast at issue. Gerelco was managing a situation in which lights were being continually deactivated either by accident or design. Apparently for this very reason, the underlying contracts recognized that ten percent of the lights on the seventeen mile stretch of highway being widened might be out at any one time. This is not a case in which the condition at issue itself created an obvious clear and present danger of serious harm. Villalta v. Cornn Int‘l, Inc., 109 So. 3d 278, 279 (Fla. 1st DCA 2013) (holding the issue of gross negligence was a jury question where a subcontractor failed to obey safety standards and cover hоles it cut in concrete floors of a building under construction where many tradespeople were working).
Moreover, the light at issue had been inoperable for almost a year and half without incident. There had been no accidents, no near accidents, no work stoppages, no highway closings, and no other specific problems caused by the non-functioning light. This is not a case where the employer ignored prior dangerous mishaps. See Pyjek v. ValleyCrest Landscape Dev., Inc., 116 So. 3d 475, 478 (Fla. 2d DCA 2013) (holding the issue of gross negligence was a jury question where a fence worker was crushed by a recently-installed
Instead, the facts of this case more closely resemble those in Vallejos, 116 So. 3d at 552-53 (upholding summary judgment in a case where a worker was injured after wrapping rope around his hand because allowing workers to dump a hopper using makeshift rope may have been negligent and more dangerous than other methods, but it did not rise to level of gross negligence) and Mеrryman v. Mattheus, 529 So. 2d 727, 729 (Fla. 2d DCA 1988) (upholding summary judgment because allowing a crane operator to use a crane with a malfunctioning device designed to prevent lifting the load too high, after instructing crane operator not too lift loads above certain height, did not support finding of gross negligence).
On this record, the lower lighting conditions created a possibility of harm, which is required to prove simple negligence. But they did not create a condition in which an accident would probably and most likely occur, which is required to prove gross negligence. See, e.g., Weller, 419 So. 2d at 741. Moreover, Gerelco‘s conduct, even if it rose to a careless disregard required for simple negligence, did not rise to a conscious disregard of consequences required for gross negligence. See Hoyt v. Corbett, 559 So. 2d 98, 100 (Fla. 4th DCA 1990) (quoting Glaab v. Caudill, 236 So. 2d 180, 183-84 (Fla. 2d DCA 1970)). Interpreting the facts in the light most favorable to the Estate as the law рroperly requires, while a jury may well have found Gerelco‘s conduct negligent, we agree with the trial court that these facts would not support a jury finding that Gerelco acted with the conscious disregard of imminent danger to others that constitutes gross negligence.
Affirmed.