No immunity for you.

FLORIDA LAW WEEKLY

VOLUME 48, NUMBER 36

CASES FROM THE WEEK OF SEPTEMBER 8, 2023

ERROR TO ENTER SUMMARY JUDGMENT BASED ON WORKERS’ COMPENSATION IMMUNITY—DEFENDANT NOT A “STATUTORY EMPLOYER” BECAUSE ITS OBLIGATION UNDER ITS LEASE WITH PROPERTY OWNER DID NOT “OBLIGATE” THE DEFENDANT TO PERFORM A JOB OR SERVICE FOR THE LANDLORD.

Galue v. Clopay Corp., 48 Fla. L. Weekly D1740 (Fla. 3^rd DCA Aug. 30, 2023):

The defendant lessor, Clopay, entered into a lease with a commercial landlord for a storage facility for its products. Clopay hired a company, Florida Fire Safety (FFS) to conduct an inspection of the premises including the exit and emergency lights. The plaintiff was a technician for FFS assigned to do the inspection.

While conducting the inspection, the plaintiff noticed that an exit light located behind some pallets which needed to be changed. The Plaintiff asked a Clopay employee to move the pallets so he could change the light. As the employee was moving the pallets they fell on the plaintiff. He received workers’ compensation benefits from his employer’s work comp carrier.

The plaintiff then sued Clopay and its employee for the injuries sustained in the forklift incident. Both raised workers’ compensation immunity as an affirmative defense.

Clopay argued that a clause in its lease that required it to use the premises in compliance with all laws and regulations conferred upon it an obligation to ensure that the fire safety equipment was operational. Clopay successfully asserted that it delegated its contractual obligation owed to the landlord, to the plaintiff’s employer, thereby rendering the plaintiff its statutory employee.

The appellate court reversed, finding the plaintiff did not have a contractual obligation to perform work services that arose out of its lease with the landlord. The contract did not require Clopay to provide fire safety services for the landlord, much less to maintain and repair fire safety equipment.

Simply because the defendant has a contractual obligation to a third party alone does not give that defendant tort immunity as a “contractor” under Section 440.10(1)(b). The contractual obligation or “contract work” refers to an obligation on the part of the defendant to perform a job or provide a service. In this case, Clopay’s contractual obligation to the landlord required nothing more than its restricted use of the premises in accordance with general law. Clopay was not obligated to perform a job or service and, thus, was not a contractor that sublet its “contract work” within the meaning of Section 440.10(1)(b).

On appeal, Clopay also tried to assert that it subcontracted “contract work” to FFS based on additional language in the lease requiring it to alter or modify the premises in order to comply with a legal use and to repair, replace and maintain the premises in good condition.

Because neither Clopay nor the trial court had considered that language in reaching its conclusion, there was no basis for the court to affirm the summary judgment based on that argument, noting that it did not accept that Clopay had a contractual obligation to perform work under that scenario anyway.

ERROR TO DISMISS CASE WITH PREJUDICE FOR PLAINTIFF’S DISCOVERY MISCONDUCT WHEN THE WRITTEN ORDER ONLY INCLUDED EXPRESS FINDINGS REGARDING FOUR OF THE SIX KOZEL FACTORS.

Reaction Rehab v. Fletcher, 48 Fla. L. Weekly D1746 (Fla. 3^rd DCA Aug. 30, 2023):

After the plaintiff fell at a shopping center, she sought physical therapy at Reaction Rehab. Ultimately Reaction Rehab sued her for unpaid services.

The injured victim requested the production of documents relative to her treatment as set forth in her affirmative defenses. Reaction Rehab failed to timely respond. The victim then moved to compel the Rehab to produce responses five separate times, all of which were granted by the trial court. Reaction Rehab was monetarily sanctioned on two occasions.

The trial court warned it would consider dismissing the complaint as a sanction if there were any other delays or failures to comply with the orders.

Reaction Rehab partially responded to the victim’s requests, but failed to fully comply with the court’s orders. On the fifth motion to compel and for sanctions, the trial court granted the request to dismiss the case, finding that Reaction Rehab reacted in bad faith and intentionally prejudiced the victim by failing to provide those discovery responses.

The trial court had conducted a non-evidentiary hearing on the victim’s motion to dismiss and issued an order which referred to all of the Kozel factors (an evidentiary is probably always best).

However, at the hearing, there was no discussion of those factors, and the trial court’s order failed to include express findings regarding all six of the factors (i.e., failed to address whether the client was personally involved in the disobedience and whether the delay created significant problems of judicial administration).

While the transcript of the hearing suggested that Reaction Rehab may have been responsible for part of the discovery misconduct, the trial court’s order did not make an express finding to that effect, requiring reversal and further consideration under Kozel.