MARJORIE ROBERTS, INDIVIDUALLY AND AS GUARDIAN OF ETHAN ROBERTS (AN INCOMPETENT ADULT) AND AS GUARDIAN AND MOTHER OF ANDREW ROBERTS AND STEVEN ROBERTS, MINORS, APPELLANT,
v.
CADCO BUILDERS, INC., AND JOSEPH CATANZARITI, INDIVIDUALLY AND AS OFFICER AND DIRECTOR OF CADCO BUILDERS, INC., APPELLEES
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Marjorie Roberts sued Cadco Builders and its officer for injuries her husband Ethan sustained in a fall at a construction site, asserting alternative theories to avoid workers' compensation immunity. The trial court dismissed the complaint, but the appellate court reversed, holding that workers' compensation immunity is generally an affirmative defense that cannot be raised on a motion to dismiss unless the defense appears on the face of the complaint.
Workers' compensation immunity is an affirmative defense that generally cannot be raised in a motion to dismiss unless the defense appears on the face of the complaint. The complaint here did not contain the defense on its face, so the defendants should have answered and raised the immunity defense, allowing Roberts to plead her estoppel theory as a reply.
[1] Workers' compensation immunity is an affirmative defense that generally cannot be raised in a motion to dismiss.
[2] An exception to the rule that workers' compensation immunity cannot be raised in a motion to dismiss exists when the defense appears on the face of the complaint.
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Join FLexlaw to unlock all legal intelligence“It is the general rule that workers' compensation immunity is an affirmative defense which cannot be raised in a motion to dismiss.”
Establishes the primary legal rule that workers' compensation immunity must be raised as an affirmative defense, not through a motion to dismiss.
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Join FLexlaw to unlock all legal intelligenceEthan Roberts suffered serious injuries when he fell sixteen feet from a ladder onto a marble floor at a construction site. Roberts filed a fifteen-co…
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PATTERSON, Judge.
Marjorie Roberts, individually, and as the representative of her husband Ethan and her children, Andrew and Steven (collectively, Roberts), sued Cadco Builders, Inc. (Cadco), and Joseph Catanzariti, individually, and as an officer and director of Cadco, for injuries Ethan suffered on a construction site. The trial court dismissed the complaint with prejudice. We reverse.
Ethan suffered serious injuries when he fell sixteen feet from a ladder to a marble floor below. Roberts sued in a fifteen-count complaint and asserted in the alternative that Ethan was an employee of Cadco or an independent subcontractor. The complaint, under these alternative theories, attempts to avoid the workers’ compensation immunity provided in section 440.11, Florida Statutes (1991), as to both Cadco and Catanzariti.
The defendants each filed motions to dismiss, asserting that immunity. At the hearing on the motions, Roberts’ counsel advised the court that Ethan had previously filed a workers’ compensation claim against Cadco, pursuant to chapter 440, and that the judge of compensation claims had stayed the proceeding. Roberts’ counsel explained that Cadco had asserted the defense that Ethan had exempted himself from the operation of chapter 440 by filing with the Florida Workers’ Compensation Division a notice of election to be exempt from the Florida Workers’ Compensation Law. Roberts’ counsel argued that Cadco should be estopped from asserting a contrary position in this case. The trial court disagreed and dismissed the action.
It is the general rule that workers’ compensation immunity is an affirmative defense which cannot be raised in a motion to dismiss. Eiler v. Camp Dresser & McKee, Inc., 542 So. 2d 441 (Fla. 5th DCA 1989); Walker v. I.T.D. Indus., Inc., 437 So. 2d 230 (Fla. 2d DCA 1983). An exception to the rule is where the defense appears on the face of the complaint. General Cinema Beverages of Miami, Inc. v. Mortimer, 689 So. 2d 276 (Fla. 3d DCA 1995). This case does not fall within the exception. Properly pleaded, Cadco and Catanzariti may answer and raise workers’ compensation immunity as an affirmative defense. Roberts may then plead her estoppel theory in avoidance in the form of a reply. With the pleadings thus properly framed, the case may proceed to summary judgment or trial.
Reversed and remanded.
SCHOONOVER, A.C.J., and WHATLEY, J., concur.
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Ruiz v. Aerorep Grp. Corp., 941 So. 2d 505 (Fla. 3d DCA 2006)…ugh workers’ compensation immunity usually cannot be raised in a motion to dismiss, an exception exists allowing the defense to be raised in a motion to dismiss where the defense appears on the face of the complaint. Roberts v. Cadco Builders, Inc., 694 So. 2d 845, 846 (Fla. 2d DCA 1997); Gen. Cinema Beverages of Miami v. Mortimer, 689 So. 2d 276, 277-78 (Fla. 3d DCA 1995). Therefore, pursuant to the allegations set forth in the second amended complaint, because Aeropostal was entitled to worker’s compensatio…
Authorities Cited
- Gen. Cinema Beverages OF Miami, Inc. v. Mortimer, 689 So. 2d 276 (Fla. 3d DCA 1995)
- Eiler v. Camp Dresser & McKee, Inc., 542 So. 2d 441 (Fla. 5th DCA 1989)
- Carroso v. State, 437 So. 2d 230 (Fla. 2d DCA 1983)
- Walker v. I.T.D. Indus., Inc., 437 So. 2d 230 (Fla. 2d DCA 1983)