Hall v. Universal Dry Wall, Inc.

358 So. 2d 1170, 1978 Fla. App. LEXIS 15999

• Court: District Court of Appeal of Florida
• Decided: May 23, 1978
• Docket: No. 77-846
• Status: Published

Opinion

PER CURIAM.

Willie B. Hall and his wife, Cora D. Hall, take this interlocutory appeal from an order dismissing their complaint with prejudice as to the appellees, Universal Dry Wall, Inc. and Travelers Insurance Company.

The appellants filed this lawsuit alleging that Mr. Hall was seriously injured while riding as a passenger in a pick up truck owned by Universal Dry Wall and insured by Travelers. At the time of the accident, although Mr. Hall apparently was employed by Universal Dry Wall and engaged in duties within the course and scope of his employment, there are no allegations in the complaint so alleging.

In their complaint, the Halls sought damages against the appellees for injuries arising out of the accident. Dade County was also made a defendant below but is not a party to this appeal.

The appellees moved to dismiss the complaint on the ground that Mr. Hall was an employee of Universal Dry Wall at the time of the accident and has received and accepted workmen’s compensation benefits from his employer and therefore the appellees were legally immune from the claims brought against them in this lawsuit. The trial court agreed and dismissed the com-| plaint with prejudice as to the appellees. This interlocutory appeal followed.

We reverse on the authority of Preston v. Grant Advertising, Inc., 166 So.2d 219, 222 (Fla.3d DCA 1964) where we stated:

“The allegation of the defendant as to the Workmen’s Compensation Law is a matter of defense and not properly the subject of a motion to dismiss. See Southeastern Title and Insurance Company v. Curtis, Fla.App.1963, 155 So.2d 855.-."

The appellees’ assertion that they are immune from suit as a result of their payment of workmen’s compensation benefits to the appellant is not a proper ground for a motion to dismiss. Nor have any recent amendments to the Florida Rules of Civil Procedure abrogated or modified the law on this point.

The trial court erred by dismissing the appellants’ complaint with prejudice. This cause is remanded with directions to reinstate the complaint.

Reversed and remanded.