Horizontal Immunity For Work Comp Does Not Apply When The Contractor Owns The Property

In the case of Leonirez Heredia v. John Beach Associates, Inc., et al., Case Number 2D18-4127 (Fla. 2d DCA July 24, 2019), Florida’s Second DCA held that there was no horizontal privity for purposes of workers compensation immunity when the general contractor is the owner of the property that was under construction.

Essentially, the general contractor was acting as the owner instead of acting as contractor and, therefore, the exclusivity provision of section 440.10, Fla. Stat. does not apply.

Facts Of The Case – What Happened

Mr. Heredia was an employee of QGS Development that was a subcontractor for Lennar Homes. He was cleaning dirt from the road when Mr. Gross (who was an employee of JBA and had a “blanket contract” with Lennar Homes to work on several subdivisions) backed into him with a truck.

At the trial level, Gross and JBA defended the lawsuit by seeking a summary judgment on the issue of whether they were immune from suit due to the exclusivity of remedies provided in section 440.10, Fla. Stat. for contractors in the construction industry. The trial judge granted summary judgment in favor of Gross and JBA finding that horizontal privity exists under the umbrella of Lennar Homes, as the general contractor.

Mr. Heredia argued in his own motion for summary judgment that there is no worker’s compensation immunity because Lennar Homes was developing the subdivision for itself as the owner and not under a contract with any third party. Mr. Heredia was forced to appeal.

This Is Where We Need To Really Pay Attention

Most of us in the “real world” just do our jobs and don’t worry about things like when workers’ compensation immunity applies and when it doesn’t. Florida’s workers compensation statutes get changed by the Legislature on relatively frequent basis and the changes are passed off to the public as beneficial to all. However, in the unfortunate event that someone gets hurt or killed on the job, the law is enforced (sometimes brutally).

This is where changes to Florida’s workers compensation statute over the years have operated to limit the rights of construction workers over the rights of other types of workers. It really is not fair to draw such a distinction but Florida law provides for immunity for all injuries caused by construction subcontractors who are working under the “umbrella” of a general contractor. This is where many Florida personal injury attorneys get turned off to just about any on the job injury at a construction site.

Lennar Acted As Their Own Contractor

However, with this particular neighborhood, Lennar Homes happened to be both the property owner and the general contractor.

Section 440.10(1)(b) provides “horizontal immunity” when a “contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors…” and “all of the employees of such contractor and subcontractor or subcontractors on such contract work shall be deemed to be employed in one and the same business or establishment…“

Since Lennar Homes was the owner of the property, they were not “subletting” their “contract work” to QGS and JBA. Instead, Lennar Homes was basically acting as the property owner and not as a general contractor when Lennar employed QGS and JBA. Therefore, the Second DCA reversed and held that there is not immunity between Mr. Heredia and Mr. Gross under Chapter 440, Fla. Stat.

If you are faced with an issue of whether of who is considered a “contractor” under Florida law for purposes of immunity after an injury such as this one, you should cite the following cases (in addition to this one) in your legal arguments:

• Derogatis v. Fawcett Memorial Hospital, 892 So. 2d 1079 (Fla. 2d DCA 2004)
• Sotomayor v. Huntington Broward Assocs. LP, 697 So. 2d 1006 (Fla. 4th DCA 1997)
• Antinarelli v. Ocean Suite Hotel, 642 So. 2d 661 (Fla. 1st DCA 1994)
• Slora v. Sun ‘n Fun Fly-In, Inc., 173 So. 3d 1099 (Fla. 2d DCA 2015)

Check With Us To See If Your On The Job Injury Has Third Party Liability

This case is a prime example of how a Florida personal injury lawyer who knows the law can help you determine whether you have a case outside of workers compensation or not. The rules for work comp immunity in Florida were not set up in any logical manner to protect the public.

Schedule a free consultation with us today to find out whether you can collect for your on the job injury in Lakeland, Florida.

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