FERNANDO GALUE v. CLOPAY CORPORATION

• Court: District Court of Appeal of Florida
• Decided: August 30, 2023
• Docket: 22-0661
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 30, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-661 Lower Tribunal No. 20-16688 ________________

Fernando Galue, Appellant,

vs.

Clopay Corporation, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge.

Leeder Law and Thomas H. Leeder and Andrew R. Smith (Plantation); Burlington & Rockenbach, P.A., and Jeffrey V. Mansell (West Palm Beach), for appellant.

Clyde & Co US LLP and Frederick J. Fein and Clayton W. Thornton, for appellees.

Vaka Law Group, P.L., and George A. Vaka and Robert C. Hubbard (Tampa), for Florida Justice Association, as amicus curiae.

Before FERNANDEZ, HENDON and LOBREE, JJ. LOBREE, J.

Fernando Galue appeals from a final judgment entered in favor of

Clopay Corporation (“Clopay”) and Anthony Julian on each’s affirmative

defense that Clopay was Galue’s statutory employer under section

440.10(1)(b), Florida Statutes (2022), and therefore entitled to statutory

employer immunity from Galue’s personal injury claim. We find that the sole

contractual clause relied upon by Clopay in moving for summary judgment

did not oblige it to perform a job or provide a service for a third party (i.e.,

Clopay’s landlord). Therefore, we conclude that when Clopay hired Galue’s

employer to conduct a fire inspection of its premises it did not sublet “part or

parts” of its “contract work to a subcontractor,” such that Clopay obtained

statutory employer status under section 440.10(1)(b). Accordingly, we

reverse the summary judgment entered in favor of Clopay and Julian and

remand for further proceedings.

BACKGROUND

Clopay entered into a lease with KTR SF II LLC for the rental of a

portion of a building located in Doral, Florida (the “premises”), which Clopay

used as a storage facility for its products. During its tenancy, Clopay hired

Florida Fire Safety (“FFS”) to conduct an inspection of the premises,

including the exit and emergency lights. Galue was a technician for FFS,

2 and he was assigned to do the inspection at Clopay. While conducting the

inspection, Galue noticed that an exit light located behind some pallets

needed to be changed. Galue asked Julian, a Clopay employee, to move

the pallets so that he could change the light. Julian told Galue to stand back,

and started moving the pallets with a forklift. Then, Galue heard a loud noise,

and pallets and boxes fell on him. Galue received worker’s compensation

benefits for his injuries from FFS’ worker’s compensation carrier.

Galue then brought an action in state court against Clopay and Julian

for the injuries he sustained in the forklift incident. Galue alleged claims for

negligence against both Clopay and Julian, and vicarious liability against

Clopay. Clopay and Julian each answered and raised worker’s

compensation immunity as an affirmative defense.

Clopay moved for summary judgment asserting that Galue’s action

was barred by worker’s compensation immunity. Specifically, Clopay argued

that a clause in paragraph 4 of its lease with KTR SF II, requiring it to “use

the Premises in compliance with all federal, state, local, and municipal laws,

orders, judgments, ordinances, regulations, codes, directives, permits,

licenses, covenants and restrictions . . . applicable to the Premises

(collectively, ‘Legal Requirements’),” meant that it had a contractual

obligation to KTR SF II to ensure that fire safety equipment was operational.

3 Clopay asserted that it then delegated its contractual obligation to KTR SF II

to Galue’s employer, FFS. As a result, Clopay was a “statutory employer” of

a subcontractor, FFS, and was therefore immune from liability via the

“vertical immunity” set forth in section 440.10(1)(b). Galue opposed Clopay’s

summary judgment motion, arguing in part that the lease’s requirement that

Clopay use the premises in compliance with the law was not a service it

performed for KTR SF II. Therefore, Clopay was not a “contractor” who

sublet “contract work” under section 440.10(1)(b).

The trial court granted summary judgment in favor of Clopay. Relying

solely on the lease’s requirement that Clopay “use the Premises in

compliance with all federal, state, local, and municipal laws, orders,

judgments, ordinances, regulations, codes, directives, permits, licenses,

covenants and restrictions . . . applicable to the Premises,” the trial court

found that Clopay “delegated/sublet its contractual obligation [under the

lease] to comply with fire safety laws” to FFS. Galue, in turn, was injured

“while performing these fire safety services” as an employee of FFS. Thus,

the trial court concluded that Clopay was entitled to worker’s compensation

immunity as Galue’s statutory employer under sections 440.10(1)(b) and

440.11(1), Florida Statutes. Galue, Clopay, and Julian filed a joint stipulation

that the order granting final judgment in favor of Clopay would apply equally

4 to Julian. Thereafter, the trial court entered final judgment against Galue on

his claims against both Clopay and Julian. This appeal followed.

STANDARD OF REVIEW

A trial court’s final summary judgment in favor of a defendant claiming

worker’s compensation immunity is reviewed de novo. See Heredia v. John

Beach & Assocs., Inc., 278 So. 3d 194, 196 (Fla. 2d DCA 2019); Slora v.

Sun ‘n Fun Fly-In, Inc., 173 So. 3d 1099, 1101 (Fla. 2d DCA 2015).

ANALYSIS

Under section 440.10(1)(b), a defendant is entitled to worker’s

compensation immunity as an injured worker’s “statutory employer if it is

considered a ‘contractor’ that ‘sublet[] any part’ of its ‘contract work’” to the

injured worker’s employer. Tampa Elec. Co. v. Gansner, 327 So. 3d 1281,

1284 (Fla. 2d DCA 2021) (quoting § 440.10(1)(b), Fla. Stat.). That

subdivision provides as follows:

(b) In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

§ 440.10(1)(b). “[T]he purpose of section 440.10 . . . [is] ‘to insure [sic] that

5 a particular industry will be financially responsible for injuries to those

employees working in it, even though the prime contractor employs an

independent contractor to perform part or all of its contractual undertaking.’”

Gator Freightways, Inc. v. Roberts, 550 So. 2d 1117, 1119 (Fla. 1989)

(quoting Roberts v. Gator Freightways, Inc., 538 So. 2d 55, 60 (Fla. 1st DCA

1989)); see also Crum Servs. v. Lopez, 975 So. 2d 1184, 1186 (Fla. 1st DCA

2008) (explaining that section 440.10(1)(b) “is designed to ensure that

employees engaged in the same contract work are covered by workers’

compensation, regardless of whether they are employees of the general

contractor or its subcontractor”).

To be considered a “contractor” under section 440.10(1)(b), an entity

must “show that it ‘incurred a contractual obligation to a third party.’”1 Slora,

173 So. 3d at 1101; see also Rabon v. Inn of Lake City, Inc., 693 So. 2d

1126, 1130 (Fla. 1st DCA 1997) (“[W]e read the language of section

440.10(1)(b) as an expression of legislative intent that the sublet work must

be an obligation included within a promissory agreement between the

1 Galue does not dispute that a commercial lease is a contract to which section 440.10(1)(b) may apply. See, e.g., Gator Freightways, Inc., 550 So. 2d at 1119 (stating that section 440.10 is not limited to construction contracts); Miami-Dade Cnty. v Acosta, 757 So. 2d 539, 541 (Fla. 3d DCA 2000) (finding that Miami-Dade County had “contractual obligation” for section 440.10 purposes under commercial lease).

6 contractor and a third party.”); Bal Harbour Tower Condo. Ass’n, v. Bellorin,

351 So. 3d 96, 99 (Fla. 3d DCA 2022). That contractual obligation to a third

party must in turn be sublet to a subcontractor. See Rabon, 693 So. 2d at

1131 (stating that section 440.10(1)(b) “is expressly limited to circumstances

in which a contractor sublets performance of a contractual obligation that it

owes to a third party”); Woods v. Carpet Restorations, Inc., 611 So. 2d 1303,

1304 (Fla. 4th DCA 1992) (“It is absolutely basic, therefore, that one cannot

be a ‘contractor’ (and thus a statutory employer) within the meaning of this

statute unless the ‘contractor’ has a contractual obligation, a portion of which

is sublet to another.”).

On appeal, Galue argues that Clopay was not a “contractor” for

worker’s compensation purposes because Clopay did not have a contractual

obligation to perform work, services, or a job that arose out of its lease with

KTR SF II. Specifically, Galue contends that Clopay’s obligation under the

lease to “use the Premises in compliance with all federal, state, local, and

municipal laws, orders, judgments, ordinances, regulations, codes,

directives, permits, licenses, covenants and restrictions . . . applicable to the

Premises,” did not require it to provide fire safety services to KTR SF II, much

less to maintain and repair fire safety equipment. We find that Galue’s

argument has merit.

7 The fact that a 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). Instead, Florida courts have consistently characterized

the contractual obligation, or “contract work,” to which section 440.10(1)(b)

refers as an obligation on the part of the defendant to perform a job or provide

a service. See Gator Freightways, Inc., 550 So. 2d at 1119 (“Roberts

recognized that, for a company to be a contractor under this section, its

primary obligation in performing a job or providing a service must arise out

of a contract.”); Tampa Elec. Co., 327 So. 3d at 1284 (“To be considered a

contractor under section 440.10, Tampa Electric’s ‘primary obligation in

performing a job or providing a service must arise out of a contract.’” (quoting

Sotomayor v. Huntington Broward Assocs. L.P., 697 So. 2d 1006, 1007 (Fla.

4th DCA 1997)); Slora, 173 So. 3d at 1102 (“Thus, to be immune from tort

liability as a contractor, a defendant’s “primary obligation in performing a job

or providing a service must arise out of a contract.” (quoting Derogatis v.

Fawcett Mem’l Hosp., 892 So. 2d 1079, 1083–84 (Fla. 2d DCA 2004)); Acme

Oil v. Vasatka, 465 So. 2d 1314, 1317 (Fla. 1st DCA 1985) (“To be a

contractor under [section 440.10], one must have a contractual obligation to

perform some work for another.”); see also Bal Harbour Tower Condo.

Ass’n., 351 So. 3d at 99 (considering valet services as contractual

8 obligation); Miami Herald Publ’g v. Hatch, 617 So. 2d 380, 382–83 (Fla. 1st

DCA 1993) (contractual obligation consisted of duty to use best efforts to

publish, deliver, and sell newspapers); Yero v. Miami-Dade Cnty., 838 So.

2d 686, 687 (Fla. 3d DCA 2003) (finding worker’s compensation immunity

where county contracted with power company to “maintain and utilize the

premises to generate electricity”); Batmasian v. Ballachino, 755 So. 2d 157,

158 (Fla. 4th DCA 2000) (rejecting argument of injured roofing repair worker

that landlord was “contractor” because although lease between landlord and

tenants obligated landlord to maintain premises “he had [not] agreed by

contract to perform the actual repairs personally”).

Here, Clopay’s contractual obligation to KTR SF II under the cited

clause required nothing more than that it restrict its use of the premises in

accordance with the general law. Clopay was not obligated to perform a job

or service. Thus, Clopay was not a “contractor” that sublet its “contract work”

within the meaning of section 440.10(1)(b) when it hired FFS. 2 Indeed,

2 Because we conclude that the lease’s provision requiring Clopay to use the premises in compliance with the general law does not call for “contract work,” we need not address the rule, emphasized by Clopay, that an entity’s status as a statutory employer will not be defeated by the fact that a contractual obligation operates concurrently with a regulatory obligation. See Smith v. Mariner’s Bay Condo. Ass’n, 789 So. 2d 1228, 1230 (Fla. 3d DCA 2001) (“recogniz[ing] that an entity that has a contractual obligation, all or part of which is sublet to another, is not exempt from being a statutory employer

9 Clopay does not quarrel with the contention that “contract work” means a

contractual obligation to a third party to perform a job or service. Nor does

Clopay defend the summary judgment on the basis that the lease’s clause

requiring it to use the premises in compliance with the law alone obligated it

to perform a job or service for KTR SF II. Instead, Clopay’s assertion that it

subcontracted “contract work” to FFS rests 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.

Clopay argues that this additional language, along with cited provision,

formed its contractual obligation to perform a service for the landlord, KTR

SF II.

The problem for Clopay is that it did not rely on the additional language

it now points to on appeal when it moved for summary judgment. Nor does

the trial court’s order reflect that the trial court relied on, or even considered,

the additional language in reaching its conclusion. Therefore this court

cannot affirm the summary judgment order based on this argument. Sousa

v. Zuni Transp., Inc., 286 So. 3d 820, 823–24 (Fla. 3d DCA 2019) (declining

to affirm summary judgment on grounds not raised in summary judgment

under section 440.10 merely because the performance of that obligation is regulated by statute”).

10 motion; “[I]t is well-settled that ‘[t]he [t]ipsy [c]oachman doctrine does not

apply to grounds not raised in a motion for summary judgment.’” (quoting

Mitchell v. Higgs, 61 So.3d 1152, 1155 n.3 (Fla. 3d DCA 2011))); Nesbitt v.

SafePoint Ins. Co., 343 So. 3d 193, 193 n.2 (Fla. 3d DCA 2022) (same).

In this way, Clopay’s reliance on this court’s decision in Acosta is

misplaced. In Acosta, Miami-Dade County leased space at Miami

International Airport to American Airlines. The lease made the County

“responsible for inspecting, assessing, and thereafter remediating the

leasehold premises of hazardous substances.” 757 So. 2d at 540. When

American Airlines discovered hazardous substances on its premises, it

contracted with an entity to remediate the area. While performing

remediation services, an employee of a company hired by the remediation

entity was injured. The injured worker sued the County, and the trial court

denied the County’s motion for summary judgment based on worker’s

compensation immunity. This court reversed, holding that the County was

the injured worker’s statutory employer under section 440.10(1)(b). Id. at

541. We reasoned that because the County had a “contractual obligation to

American Airlines to remediate the excavations,” which obligation it then

sublet, and the injury occurred while performing remediation efforts, the

County was a “contractor” within the meaning of section 440.10(1)(b). Id.

11 Here, unlike in Acosta, under the singular lease provision forming the basis

of its summary judgment motion, Clopay did not have a contractual obligation

to perform some work (e.g., inspect, assess, or repair fire safety equipment)

for KTR SF II. Thus, Clopay’s assertion that Acosta is “factually

indistinguishable” from the case at hand and compels a finding that it is a

“contractor” under section 440.10(1)(b) lacks merit. 3

CONCLUSION “The statutory terms ‘contractor’ and ‘contract work’ plainly and

unambiguously posit a party performing work pursuant to a contract with

another.” Slora, 173 So. 3d 1099. Because the only language relied on by

Clopay in moving for summary judgment did not oblige it to perform a job or

service for KTR SF II, Clopay was not a “contractor” within the meaning of

3 Clopay relies on two additional cases in support of its claim that it was contractually obligated to KTR SF II to provide a service, neither of which helps it. First, Clopay relies on Clark v. All Roof Systems, LLC, No. 2014- CA-012847, 2016 WL 5957186, at *2 (Fla. 13th Cir. Ct. July 29, 2016), which is a nonbinding decision from a circuit court, and, in any event, is factually distinguishable because the lease provision at issue required the tenant to “make all necessary structural repairs to the Building.” Second, Clopay relies on a per curiam affirmance from the Second District Court of Appeal, Sanchez v. American Sales & Management Org., LLC, 246 So. 3d 302 (Fla. 2d DCA 2017), which has “no precedential value because ‘[t]he rationale and basis for the decision without opinion is always subject to speculation.’” White v. AutoZone Inv. Corp., 345 So. 3d 284 (Fla. 3d DCA 2022) (quoting Dep’t of Legal Affairs v. Dist. Court of Appeal, 5th Dist., 434 So. 2d 310, 312 (Fla. 1983) (stating that per curiam decision should not be relied on for anything other than res judicata)).

12 section 440.10(1)(b) when Galue was injured while conducting a fire safety

inspection of Clopay’s premises as an employee of FFS. Therefore, on this

summary judgment record, Clopay is not entitled to immunity from suit as

Galue’s statutory employer. Accordingly, we reverse the summary judgment

entered in Clopay’s favor and remand for further proceedings consistent with

this opinion.

Reversed and remanded.