MARY E. MCCLELLAND, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF THOMAS C. MCCLELLAND, ON BEHALF OF HIS SURVIVORS AND ESTATE, APPELLANT,
v.
CARL COOL, VADEN POLLARD AND WILLIAM BUSH, APPELLEES

Fla. 2d DCA | 1989-07-28
No. 88-03098
CAMPBELL, C.J., and LEHAN, J., concur.
547 So. 2d 975 Florida District Court of Appeal, Second District (1989) Caution
Cited by 17 cases

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Holding

The court held that the sovereign immunity statute, Fla. Stat. § 768.28(9)(a), controls in a suit against co-employees of the state, not the Workers' Compensation Law. The allegations did not meet the higher culpability standard required by the sovereign immunity statute.


Headnotes

[1] In a suit against state employees for actions taken in furtherance of their employment, the sovereign immunity statute, not the workers' compensation statute, governs the…

[2] When two statutes conflict, the more specific statute controls.

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Facts & Procedural History

Plaintiff's decedent, a state employee, died when equipment he was operating overturned. The amended complaint alleged that state employee supervisors…

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Opinion of the Court
THREADGILL, Judge.

THREADGILL, Judge.

Mary McClelland, as widow and personal representative of the estate, appeals the dismissal with prejudice of her wrongful death action against several state employees. The trial court dismissed the amended complaint on the ground that the allegations were insufficient to state a cause of action. We affirm. ,

Thomas C. McClelland, an employee of the Florida Department of Transportation (DOT) was killed when heavy equipment he was operating overturned as he worked on a road resurfacing project in Highlands County. The amended complaint alleged that the appellees, who were DOT supervisors on the project, negligently allowed employees under their supervision to operate unfamiliar and potentially dangerous heavy equipment; knowingly violated standard DOT and industry practices; knowingly allowed McClelland to work in an area where it was substantially certain the equipment he was operating would cause the ground or fresh asphalt to collapse or shift; and failed to warn McClelland of this dangerous condition.

The trial court dismissed the amended complaint with prejudice, finding that the allegations did not demonstrate bad faith or malicious purpose, or wanton and willful disregard of human rights, safety, or property sufficient under the criteria in section 768.28(9)(a), Florida Statutes (1987), to constitute a waiver of the sovereign immunity granted state employees. The appellant contends that the court erred in applying section 768.28(9)(a), rather than the more lenient provisions of section 440.-11(1) of the Workers’ Compensation Law which extends immunity from liability to all employees acting in furtherance of the employer’s business, except when there is willful and wanton disregard or unprovoked physical aggression or gross negligence resulting in injury or death. Both statutes waive immunity for willful and wanton acts but only section 440.11 encompasses gross negligence.

The appellant argues that the workers' compensation provision which governs tort actions between coemployees, should control because application of the more stringent standard in the sovereign immunity statute denies the appellant a remedy granted by section 440.11. We acknowledge, as do the appellees, the apparent conflict between the two statutes but conclude that the trial court correctly found that section 768.28(9)(a) controls in a suit against coworkers who are employees of a sovereign.

It is a well-established principle of statutory construction that where there is a conflict between statutes, the more specific statute controls. E.g., Ellison v. City of Fort Lauderdale, 183 So. 2d 193 (Fla.1966); Floyd v. Bentley, 496 So. 2d 862 (Fla. 2d DCA 1986); rev. den., 504 So. 2d 767 (Fla. 1987); State v. Billie, 497 So. 2d 889 (Fla. 2d DCA 1986), rev. den., 506 So. 2d 1040 (Fla.1987). The Workers’ Compensation Law is generally applicable to all employers, and extends limited immunity to employers and their employees. § 440.11(1), Fla.Stat. (1987). Section 768.28, however, deals specifically with suits against the state and its agencies and subdivisions. We therefore conclude that section 768.-28(9)(a), covering officers, employees and agents of the state, is the more specific statute.

We also adhere to the principle that where it is not possible to give effect to two statutes without materially altering their intent, the last expression of legislative will prevails. E.g., Floyd v. Bentley; Mikos v. Ringling Bros.-Barnum & Bailey Combined Shows, Inc., 475 So. 2d 292 (Fla. 2d DCA 1985), affirmed, 497 So. 2d 630 (Fla.1986); Department of Health & Rehabilitative Services v. American Healthcorp of Vero Beach, Inc., 471 So. 2d 1312, n. 2, 1315 (Fla. 1st DCA 1985), approved, 488 So. 2d 824 (Fla.1986). The applicable language in the Workers’ Compensation Law became effective July 1, 1978. Ch. 78-300, §§ 2, 25, Laws of Fla. The sovereign immunity provision in question became effective on June 30, 1980. Ch. 80-271, § 6, Laws of Fla.; Rupp v. Bryant, 417 So. 2d 658, 660-61 (Fla.1982). Thus, under standard principles of statutory construction, the more recent provision of section 768.28(9)(a) controls.

The appellant argues in the alternative that the court erred because the allegations of the amended complaint do satisfy the greater degree of culpability required by section 768.28(9)(a). We cannot agree. The conclusory allegations of negligent supervision, knowing violation of industry practices and failure to warn do not constitute willful and wanton behavior and therefore fail to state a cause of action sufficient to waive the immunity of a coemploy-ee under section 768.28(9)(a). Rupp v. Bryant, 417 So. 2d at 670, and Nicholas v. Miami Burglar Alarm Co., 339 So. 2d 175 (Fla.1976).

In affirming the court’s decision that the more stringent standards of section 768.-28(9)(a) control, we need not decide whether the allegations of the amended complaint state a cause of action for gross negligence under section 440.11. The final judgment dismissing the action with prejudice is affirmed.

Affirmed.

CAMPBELL, C.J., and LEHAN, J., concur.


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Cited By

  • …ate’s waiver of sovereign immunity. See, e.g., Beard v. Hambrick, 396 So. 2d 708 (Fla.1981); Hill v. Dep’t of Corrections, 513 So. 2d 129 (Fla.1987); Triannon Park Condo. Ass'n, Inc. v. City of Hialeah, 468 So. 2d 912 (Fla.1985); McClelland v. Cool, 547 So. 2d 975, 976 (Fla. 2d DCA 1989). Today, this Court continues this fulfillment of its constitutional duties by analyzing the interaction between the statutory waiver of immunity and the doctrine of equitable estoppel. . The United States Supreme Court has d…
  • Marysol Sierra v. Associated Marine Insts., Inc., 850 So. 2d 582 (Fla. 2d DCA 2003)
    …ce on this point. The only thing that is even somewhat discernible is that both standards contemplate conduct that is worse than “gross negligence.” Turner, 754 So. 2d at 687 n. 4 (regarding substantial certainty of injury test); McClelland v. Cool, 547 So. 2d 975, 976 (Fla. 2d DCA 1989) (recognizing that test for proving wanton and willful acts exception to employee immunity in section 768.28(9)(a) is more stringent than gross negligence exception to coemployee workers’ compensation immunity in section 440.1…
  • State v. Koch, 582 So. 2d 5 (Fla. 1st DCA 1991)
    …OC employee Tyre were coemployees “assigned primarily to unrelated works.” The DOC argues that the unrelated works exception was abolished by § 768.28(9)(a), Florida Statutes, the sovereign immunity provision. Appellant relies on McClelland v. Cool, 547 So. 2d 975 (Fla. 2d DCA 1989), which found conflict between the two statutes. However, that conflict was on the issue of whether a public employee could be sued personally for gross negligence. The court found that § 768.28(9) controlled and that a public empl…

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