DAVID L. DODGE AND DORIS M. DODGE, APPELLANTS,
v.
WILLIAM E. ARNOLD COMPANY AND FIDELITY & CASUALTY COMPANY OF NEW YORK, A NEW YORK CORPORATION, APPELLEES

Fla. 1st DCA | 1979-07-26
No. LL-304
McCORD, Acting C. J., and ERVIN, J., concur.
373 So. 2d 98 Florida District Court of Appeal, First District (1979) Positive Treatment
Cited by 6 cases

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Holding

The court held that a sub-subcontractor's employee is barred from suing the general contractor for personal injuries if the employee has received workers' compensation benefits from the sub-subcontractor's carrier.


Headnotes

[1] An employee receiving workers' compensation benefits from their employer is barred from bringing a personal injury action against a general contractor if the employer is…

[2] A sub-subcontractor is defined as one who enters into a contract with a subcontractor for the performance of any part of that subcontractor's contract.

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Facts & Procedural History

Plaintiff, an electrician employed by Olson Electric, was injured on a construction project where Arnold Company was the general contractor. Olson had…

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Opinion of the Court
LARRY G. SMITH, Judge.

LARRY G. SMITH, Judge.

Appellants appeal from a final summary judgment in favor of defendant-appellee in a personal injury action. We find no error and affirm.

Appellants brought suit against William E. Arnold Company for injuries sustained by appellant David L. Dodge while working as an electrician on a construction project for which the Arnold Company was the general contractor. It is undisputed that Arnold subcontracted the electrical work on the job to Paxson Electric Company. At the time of the injury Dodge was employed by Olson Electric Company while performing work which was part of the electrical work subcontracted by Paxson. Dodge applied for and received workmen’s compensation benefits from his employer Olson’s carrier because of the accident.

An earlier trial ended in a final summary judgment in favor of Arnold; however, on appeal this court reversed that judgment because the record was unclear as to the basis upon which the trial court determined that the general contractor (Arnold) was immune from action for personal injuries suffered by Dodge; and the record was found insufficient for either the trial court or this court to determine whether Olson (Dodge’s employer) was a subcontractor, a sub-subcontractor, or a “loaned employee”. Dodge v. William E. Arnold Company, 343 So. 2d 1359 (Fla. 1st DCA 1977).

During the proceedings on remand which culminated in the final summary judgment now under attack the parties stipulated that Olson was neither a materi-alman nor a laborer, and that Dodge was not a loaned employee. The issue of Arnold’s immunity from liability because of protection afforded to employers under the workmen’s compensation law was severed from all other aspects of the case, and jury trial was held on the issue of the relationship between Dodge’s employer and the general contractor. Prior to submitting the matter to the jury the trial judge granted a directed verdict on the issue of whether Olson was a subcontractor of Arnold, holding that it was not. The issue was then submitted to the jury by means of a special verdict form requiring a “yes” or “no” answer to the following question: Was Olson Electric Company a sub-subcontractor of the defendant William E. Arnold Company on April 5, 1974? YES_ NO_

Based upon the jury finding that Olson was a sub-subcontractor of Arnold, the trial judge entered summary judgment finding that the Arnold Company was not liable for Dodge’s injuries by virtue of the immunity afforded by the workmen’s compensation law. Appellant’s brief presented and argued the question whether a sub-subcontractor’s employee is barred from bringing a personal injury action against a general contractor where the employee has received workmen’s compensation benefits from the sub-subcontractor’s carrier.

However, on oral argument appellant’s counsel conceded that action against the general contractor is barred under the circumstances presented in this case, if Dodge’s employer whs in fact a sub-subcontractor under the Arnold contract.

We agree that this conclusion is correct based upon the established case law on the subject. See Brickley v. Gulf Coast Construction Co., 153 Fla. 216, 14 So. 2d 265 (1943); Jones v. Florida Power Corporation, 72 So. 2d 285 (Fla.1954); Fidelity Construction Company v. Arthur J. Collins and Son, Inc., 130 So. 2d 612 (Fla. 1961); Gulf American Fire and Casualty Company v. Singleton, 265 So. 2d 720 (Fla. 2nd DCA 1972).

The remaining point argued by appellant is the correctness of the trial court’s ruling, based upon the special jury verdict, that Dodge’s employer Olson occupied the position of sub-subcontractor under the general contractor, Arnold.

Appellant argues that there was no evidence of a sub-subcontract agreement either written or oral between Olson and Arnold. He contends that a relationship must be established between Olson and Arnold, rather than relying upon evidence concerning the relationship between Olson and the subcontractor, Paxson. He also complains of the court’s failure to instruct the jury upon the effect of its finding that Olson either was, or was not a sub-subcontractor to Arnold, which is provided for in Section 440.10 “Liability for Compensation”, and Section 440.11 “Exclusiveness of Liability”, Florida Statutes. Otherwise appellant agrees that the jury instructions which defined the terms “sub-subcontractor”, and “contract”, taken from the provisions of the mechanics’ lien law, Chapter 713, Florida Statutes, were correct.

We fail to find error in the trial court’s failure to direct a verdict in favor of plaintiff, or in the jury’s verdict finding that Olson occupied the position of sub-subcontractor. We also conclude that in view of the narrow issue made by the pleadings and the agreements between the parties with respect to the status of the several parties, the trial court did not err in submitting the matter to the jury under the limited instruction requiring that they answer only a single factual question, and that there was no error in failing to instruct the jury upon the legal effect of their verdict upon Arnold’s liability for damages for Dodge’s personal injuries. We also are of the opinion that ample substantial evidence was presented to establish the relationship of Olson as a sub-subcontractor on the construction job. It is clear that Olson had an agreement with Paxson to provide the electricians and to complete the electrical work on the project. Olson provided its own supervision, electricians and equipment, for which payment was made to Olson by Pax-son.

Furthermore, Arnold was aware that Olson was performing the electrical work that Paxson had subcontracted to perform, and had no objection to the arrangement. Appellant’s contention that the evidence is insufficient to establish Olson’s status as a sub-subcontractor because all agreements between Olson and Paxson were oral is without merit.

Furthermore, by definition, a sub-subcontractor is one who enters into a contract with a subcontractor for the performance of any part of such subcontractor’s contract. See Section 713.01(17), Florida Statutes. For purposes of this case there was no requirement of a showing of any direct dealings between Olson and Arnold.

The judgment appealed from is affirmed;

McCORD, Acting C. J., and ERVIN, J., concur.


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Citator

Cited By

  • Reed v. Henry C. Beck Co., 510 So. 2d 613 (Fla. 3d DCA 1987)
    …thers and thereby becomes a “statutory employer” of the subcontractor’s employees. Lingold, 416 So. 2d at 1272-73. A written agreement is not necessary to establish a general contractor/subcontractor relationship. See Dodge v. William E. Arnold Co., 373 So. 2d 98 (Fla. 1st DCA 1979). [*615] The remaining points are without merit. Affirmed.…
  • Fred G. Wright, Inc. v. Edwards, 642 So. 2d 808 (Fla. 2d DCA 1994)
    …actor provides workers’ compensation benefits to its injured employee, workers’ compensation immunity would not only apply to the subcontractor, but to the general contractor as well. § 440.11(1)(b), Fla.Stat. (1987); Dodge v. William E. Arnold Co., 373 So. 2d 98 (Fla. 1st DCA 1979). Since Edwards’ employer, Suncoast Fabricators, had workers’ compensation coverage, Wright, as general contractor, was a statutory employer pursuant to section 440.10 entitled to the same immunity as Suncoast Fabricators. See Pow…
  • J.C. Concert Sound & Lighting, Inc. v. Gold, 642 So. 2d 635 (Fla. 3d DCA 1994)
    …to accord them that status. We do not reach the remaining issues on appeal or cross-appeal.2 AFFIRMED. . A written agreement is not necessary to establish a general contractor/subcontractor relation [*636] ship. See Dodge v. William E. Arnold Co., 373 So. 2d 98 (Fla. 1st DCA 1979). . We note, however, on the cross-appeal, that given the state of the record, it would appear that amendment of the pleadings would not prejudice defendants.…

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