Sullivan v. Atlantic Federal S&L Ass'n

3 Fla. Supp. 2d 101
CourtCircuit Court for the Judicial Circuits of Florida
DecidedNovember 1, 1983
DocketCase No. 82-36069
StatusPublished

This text of 3 Fla. Supp. 2d 101 (Sullivan v. Atlantic Federal S&L Ass'n) is published on Counsel Stack Legal Research, covering Circuit Court for the Judicial Circuits of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sullivan v. Atlantic Federal S&L Ass'n, 3 Fla. Supp. 2d 101 (Fla. Super. Ct. 1983).

Opinion

BOBBY W. GUNTHER, Circuit Judge

THIS CAUSE came before the Court for hearing upon defendant, Donald Streeter’s motion for reconsideration or rehearing of the Order entered September 9, 1983 which denied defendant Streeter’s motion to dismiss or in the alternative for Summary Judgment as to Count I [action for damages for gross negligence of fellow employee, exception to Section 440.11, Florida Statutes], Count II [action for damages for willful and wanton conduct of fellow employee, exception to Section 440.11, Florida Statutes], Count VI [action for damages for negligence of fellow employee assigned primarily to unrelated works, exception to Section 40.11. Florida Statutes] and Count VII [additional action for damages for gross negligence of fellow employee, exception to Section 440.11, Florida Statutes] of the Second Amended Complaint. The Court has heard argument of counsel, reviewed the Second Amended Complaint and been otherwise fully advised in the premises.

I find that the Second Amended Complaint alleges sufficient ultimate facts to state claims for relief within the statutory causes of action created by the exceptions to Section 40.11(1), Florida Statutes adopted by the Florida Legislature in 1978. Section 440.11 (1), Florida Statutes expressly provides that:

The same immunities from liability enjoyed 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 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.

Prior to the 1978 amendment, Florida’s Workmans’ Compensation Act did not expressly provide for a cause of action by an injured employee against his fellow employee. Instead, the courts interpreted [103]*103Section 440.39(1), Florida Statutes1 which preserved the common law right of action by the injured employee against third party tortfeasors to include within its ambit fellow employees. In the Florida Supreme Court’s seminal opinion determining that a co-employee may be sued for his negligence in injuring a fellow employee in those cases where the injured person’s remedy against the common employer is exclusively under the Florida Workmen’s Compensation Act, the Court opined:

There can be no doubt that, at common law, servants mutually owed to each other the duty of exercising ordinary care in the performance of their service and were liable for a failure in that respect which resulted in injury to a fellow servant. Our research indicates that most of the courts which hold that this common law rule is abrogated by a Workmans’ Compensation Act have done so on the basis of the wording of the particular act in question . . .
There is nothing in our Act which expressly or by necessary inference requires this Court to hold that the Legislature intended to abrograte the common law rule respecting the liability to an injured employee of a negligent co-employee. Under these circumstances and the ordinary rules of statutory construction, we cannot read into the statute a provision which would be in derogation of a common-law right of an injured employee. Frantz v. McBee Company, 77 So.2d 796 (Fla. 1955).

With regard to tortfeasors who were both co-employees and supervisors, the District Courts of Appeal engrafted a limitation upon the injured employee’s right to sue. The courts reasoned that corporations can act only through their supervisors and therefore a supervisor enjoys the immunity afforded his employer under the Workmen’s Compensation Act unless he engages in conduct which, by direct involvement on his part, constitutes an affirmative act of negligence going beyond the nondelegable duty of the employer to provide his employees with a safe place to work. West v. Jessop, 339 So.2d 1136, 1137 (Fla. 2d DCA [104]*1041982); Clark v. Better Const. Co. Inc., 420 So.2d 929, 931 (Fla. 3d DCA 1982). Thus, personal liability existed for a supervisor’s ordinary negligence if he “increased the risk of injury to the employee” by his own affirmative act other than his actions taken to satisfy the employer’s duty to provide a safe place to work. Clark v. Better Const. Co. Inc., 420 So.2d at 931. As explained by the Fifth District Court of Appeal, citing Lupovici v. Hunzinger Const. Co., 79 Wis.2d 491, 255 N.W.2d 590 (1977): “ ‘The purpose of allowing third party actions in addition to workmen’s compensation was to retain the traditional fault concept of placing responsibility for damages sustained upon the culpable party. If an officer or supervisor breaches a personal duty, it does not offend the policy of the Worker’s Compensation Act to permit recovery from the officer or supervisor.’ ” Dessert v. Electric Mutual Liability Insurance Company, 392 So.2d 340 (Fla. 5th DCA 1981).

With knowledge of the Florida court decisions that created the complicated affirmative act rule for employee supervisors, the Legislature in 1978 amended Section 440.11, Florida Statutes in order to explicitly define when an injured employee is entitled to relief against his fellow employee tortfeasor.

Under the principles of statutory construction, the statute must be interpreted so as to give effect to its plain language, Cragin v. Ocean & Lake Realty Co., 101 Fla. 1324, 133 So. 569 (1931) and with a presumption that the Legislature had an objective in amending the statute. Sunshine State News Company v. State, 121 So.2d 705 (Fla. 3d DCA 1960).

The first sentence of the amendment provides immunity to the tortfeasor employee for his ordinary negligence when acting in furtherance of the employer’s business and when the injured employee is entitled to receive benefits under the Workmen’s Compensation Law. The accidental nature of the injury limits the injured employee to his remedy under the Act. However, under the second sentence of the amendment, the tortfeasor-employee is left standing just as any other tortfeasor when he acts with conscious disregard for the consequences of his action or intentionally inflicts harm; that is, he acts with gross negligence, willful and wanton disregard or unprovoked physical aggression. Under such circumstances, the injured employee may seek recovery from the willful tortfeasor, the person actually responsible for his injuries, and the employer is given the right of a set-off or reimbursement of amounts paid under the Act to his injured employee. Fla. Stat. §§440.11, 440.39 (1981). Public policy requires that the law avoid shielding one who does intentional harm or who with awareness of an imminent and clear danger acts with conscious disregard of the consequences to his fellow employee. The tortfeasor-employee who acts with gross negligence, willful and wanton conduct or unprovoked physical aggression does not escape liability [105]*105merely because he acts at the work place.

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Related

Bendall v. Home Indemnity Company
238 So. 2d 177 (Supreme Court of Alabama, 1970)
Rogers Materials Co. v. Industrial Accident Commission
408 P.2d 737 (California Supreme Court, 1965)
Burk Royalty Co. v. Walls
616 S.W.2d 911 (Texas Supreme Court, 1981)
Dessert v. ELEC. MUT. LIABILITY INS.
392 So. 2d 340 (District Court of Appeal of Florida, 1981)
Sunshine State News Company v. State
121 So. 2d 705 (District Court of Appeal of Florida, 1960)
Clark v. Better Const. Co., Inc.
420 So. 2d 929 (District Court of Appeal of Florida, 1982)
West v. Jessop
339 So. 2d 1136 (District Court of Appeal of Florida, 1976)
Frantz v. McBee Company
77 So. 2d 796 (Supreme Court of Florida, 1955)
Lupovici v. Hunzinger Construction Co.
255 N.W.2d 590 (Wisconsin Supreme Court, 1977)
Cragin v. Ocean & Lake Realty Co.
133 So. 569 (Supreme Court of Florida, 1931)

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Bluebook (online)
3 Fla. Supp. 2d 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-atlantic-federal-sl-assn-flacirct-1983.