Ramsey v. DeWitt Excavating, Inc., Case No. 5D17–311

248 So.3d 1270

Kimberly M. RAMSEY and Delmas Ramsey, Jr., as Personal Representatives of the Estate of Delmas Ramsey, III, Appellants,

v.DEWITT EXCAVATING, INC. and David E. Gubbins, Sr., Appellees.

Case No. 5D17–311

District Court of Appeal of Florida, Fifth District.

Opinion filed June 15, 2018

Andrew B. Greenlee, of Andrew B. Greenlee, P.A., Sanford and Michael B. Scoma, of Scoma Law Firm, Clermont, for Appellants.

Sharon C. Degnan and Sebastian C. Mejia, of Kubicki Draper, Orlando, for Appellees.

PALMER, J.

Kimberly and Delmas Ramsey, Jr., as personal representatives of the Estate of Delmas Ramsey, III (their deceased son), appeal the final summary judgment entered by the trial court, ruling that workers' compensation immunity barred their liability claims against David Gubbins and DeWitt Excavating, Inc. (DeWitt). We affirm as to DeWitt, but reverse as to Gubbins.

The industrial accident resulting in Ramsey's death took place while Ramsey was working for DeWitt and with Gubbins, a fellow employee. The parents' complaint alleged that Gubbins and DeWitt were liable for operating a cement-mixing pug mill while Ramsey was still inside of the mixing box, causing his death. DeWitt and Gubbins filed a motion seeking the entry of summary judgment in their favor, arguing that the parents' wrongful death claims were barred by workers' compensation immunity. The court granted the motion, and this appeal followed.

The party moving for summary judgment

bears the burden of establishing that, based on the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other material as would be admissible in evidence on file, there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Summary judgment evidence must be considered in the light most favorable to the non-moving party, and if the record raises the possibility of any genuine issue of material fact or even the slightest doubt that an issue might exist, summary judgment is improper.

Penton Bus. Media Holdings, LLC v. Orange County, 236 So.3d 495, 497 (Fla. 5th DCA 2018) (citations omitted) (internal quotation marks omitted). A final order entering a summary judgment is reviewed de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).

In R.L. Haines Construction, LLC v. Santamaria, we summarized the law relating to workers' compensation immunity, explaining that "employers in compliance with the Workers' Compensation Law are immune from their employees' common law negligence actions for damages arising from work-related injuries." 161 So.3d 528, 530 (Fla. 5th DCA 2014) (citing Bakerman v. Bombay Co., Inc., 961 So.2d 259, 262 (Fla. 2007) ). However, section 440.11(1)(b) of the Florida Statutes (2013) creates an exception to workers' compensation immunity as to employers and employees acting in furtherance of the employer's business. The statute reads, in relevant part, as follows:

440.11 Exclusiveness of liability.—

(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability ... except as follows:

....

(b) When an employer commits an intentional tort that causes the injury or death of the employee . For purposes of this paragraph, an employer's actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that:

....

2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when the employee is acting in furtherance of the employer's business and the injured employee is entitled to receive benefits under this statute. 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 ....

§ 440.11(1)(b) 2., Fla. Stat. (2013) (emphasis added).

Not finding these statutory exceptions applicable, the trial court ruled that the parents' wrongful death claims were barred by immunity. The parents contend that the trial court erred in so ruling, asserting first that the record contains genuine issues of material fact as to whether DeWitt (through Gubbins) committed an intentional tort causing Ramsey's death. We disagree.

Three elements must...