ELIZABETH A. OSTUNI, AS PERSONAL REPRESENTATIVE OF ANTHONY JOHN OSTUNI, DECEASED, APPELLANT,
v.
MEINEKE DISCOUNT MUFFLER SHOPS, INC., A FOREIGN CORP., WILLIAM R. UFER, SR., WILLIAM R. UFER, JR., REX-DOUGLAS CORPORATION, A FLORIDA CORPORATION, GORDON CADE, CAROLE COLARUSSO D/B/A TRANSMISSION KING, B.K. CAPITOL GROUP, INC., AND STATE AUTO INSURANCE COMPANIES, A FLORIDA CORPORATION, APPELLEES
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Elizabeth Ostuni, widow of Anthony Ostuni who was killed during a robbery at a Meineke shop where he worked, sued the franchise owner, franchisor, and related defendants for wrongful death. The court affirmed summary judgment for all defendants, holding they were protected by workers' compensation immunity as persons acting in a managerial or policymaking capacity.
The court affirmed summary judgment for all defendants, holding that the non-insurer defendants were "other person[s]" acting in a "managerial or policymaking capacity" within section 440.11(1), and that causes of action relying on vicarious liability through agents with workers' compensation immunity cannot exist because if the agent cannot be held liable, neither can the principal.
[1] Workers' compensation immunity does not bar a wrongful death suit against "other persons" who acted in a "managerial or policymaking capacity" within the meaning of Flori…
[2] A principal cannot be held liable for the actions of an agent if the agent cannot be held liable due to workers' compensation immunity.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We affirm in all respects, finding that the non-insurer appel-lees were "other person[s]" who acted in a "managerial or policymaking capacity" within the meaning of section 440.11(1), Florida Statutes (1998).”
Establishes the court's primary holding that defendants qualified for workers' compensation immunity under the statutory definition.
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Join FLexlaw to unlock all legal intelligenceAnthony Ostuni was shot and killed during a robbery at a Meineke Discount Muffler Shop where he worked as a mechanic. Elizabeth Ostuni received worker…
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PER CURIAM.
Anthony Ostuni was shot and killed during a robbery at a Meineke Discount Muffler Shop where he worked as a mechanic. His widow, Elizabeth Ostuni, filed for and received workers’ compensation benefits. Later, she filed a wrongful death suit against the employer (a Meineke franchise), the Meineke franchisor, a father and son connected to the franchise (the Ufers), and various employees of the franchise.
To plead around the problem of workers’ compensation immunity, one iteration of the complaint alleged Anthony Ostuni’s status as a business invitee of the franchise, which was not true. The lawsuit alleged multiple theories of liability against many defendants: that the franchisee was the actual or apparent agent of the franchisor; that the franchisee was the actual or apparent agent for the Ufers; that the Ufers were the actual or apparent agents for the franchisee; that the franchisor was directly negligent under the franchise agreement; that the Ufers were negligent as franchisees or directly negligent under the franchise agreement; and that the Uf-ers, the franchisor, and franchisees were negligent in causing Ostuni’s wrongful death.
The trial court granted the defendants’ motion for summary judgment and a motion filed by an insurer in a related declaratory judgment action. We affirm in all respects, finding that the non-insurer appellees were “other person[s]” who acted in a “managerial or policymaking capacity” within the meaning of section 440.11(1), Florida Statutes (1998). To the extent that some of the causes of action rely on the vicarious liability of those acting through agents with workers’ compensation immunity, then no cause of action exists under Mobil Oil Corp. v. Bransford, 648 So. 2d 119, 121 (Fla.1995), which holds that if an apparent “agent cannot be held liable, neither can the principal, because there is nothing to impute.” Ostuni relies upon Gulfstream Land & Development Corp. v. Wilkerson, 420 So. 2d 587 (Fla.1982), but we find that case to be inapplicable because it predates the 1988 revision of section 440.11(1).
Affirmed.
WARNER, GROSS and TAYLOR, JJ., concur.
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Cited By
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Ufer v. State Auto Ins. Cos., 961 So. 2d 1007 (Fla. 4th DCA 2007)…insured, the trial court granted summary judgment for State Auto on the coverage issue based upon the workers’ compensation exclusion. The plaintiff appealed these judgments, which this court affirmed. Ostuni v. Meineke Discount Muffler Shops, Inc., 948 So. 2d 848 (Fla. 4th DCA 2007). The insured then moved to assess attorney’s fees and costs for its defense of the declaratory judgment action and its prosecution of its counter-petition. State Auto filed an opposition to the motion, arguing that the insured w…
Authorities Cited
- Mobil OIL Corp. v. Bransford, 648 So. 2d 119 (Fla. 1995)
- Gulfstream Land & Dev. Corp. v. Wilkerson, 420 So. 2d 587 (Fla. 1982)