GORDON J. MAY, APPELLANT,
v.
J. M. MONTGOMERY ROOFING CO., INC., A FLORIDA CORPORATION, APPELLEE
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The trial court did not err in holding that the plaintiff's remedy under the Workmen's Compensation Law was exclusive, barring his recovery.
Plaintiff, an employee of a subcontractor, was injured while working on a construction project. He received compensation under a policy secured by the…
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The plaintiff, who is appellant here, appeals a summary final judgment for the defendant, J. M. Montgomery Roofing Co., Inc. The sole question presented is whether the trial court erred in holding that plaintiff was barred from recovery by §§ 440.10 and 440.11, Fla.Stat., F.S.A.
The cited sections of the Workmen’s Compensation Law provide in effect that where the general contractor has secured payment of compensation to an employee of a subcontractor, either directly or indirectly through such subcontractor, the employee’s remedy under the Workmen’s Compensation Law is exclusive as regards all parties engaged in the same contract work under *148the general contractor. Miami Roofing & Sheet Metal Co. v. Kindt, Fla.1950, 48 So.2d 840. The plaintiff received compensation under a policy issued in favor of the Mackle Company. He was injured by an employee of Montgomery Roofing who was performing construction work on the same job at which plaintiff was working.
There is no doubt that Mackle was designated the general contractor and that plaintiff’s employer, Montgomery Roofing, was operating under a contract with Mackle to perform a part of the construction process. Plaintiff-appellant urges that Mackle was not a true general contractor because General Development Corporation, the ostensible owner, reserved in its contract with Mackle the right to let subcontracts for work and materials. The contract between General and Mackle was a “cost-plus contract” and provided that Mackle would procure bids for work and materials and therefore actually determine who would be subcontractors, but that General would pay subcontractors directly.
The provisions mentioned are not sufficient to show that General controlled or supervised the building operation; therefore, appellant’s reliance upon Jones v. Florida Power Corp., Fla.1954, 72 So.2d 285 is misplaced.
Affirmed.
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Citator
Cited By
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Smith v. Ussery, 261 So. 2d 164 (Fla. 1972)…der Fla.Stat. § 440.11, F.S.A. The “common employer” section of the statute is set forth in § 440.-10(1),1 and has been correctly used in [*165] Miami Roofing & Sheet Metal Co. v. Kindt, 48 So. 2d 840 (Fla.1950); May v. J. M. Montgomery Roofing Co., 158 So. 2d 147 (3d DCA Fla.1963); Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690 (Fla. 1940). The same principle was sought to be applied in Jones v. Florida Power Corp., 72 So. 2d 285 (Fla.1954), but was denied in a well-reasoned opinion there by C…
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Carter v. Sims Crane Serv., Inc., 198 So. 2d 25 (Fla. 1967)…p., 3d Dist. 1958, 105 So. 2d 578; Michaels v. United States Fidelity & Guaranty Co., Fla.App., 2d Dist.1961, 129 So. 2d 427; Street v. Safway Steel Scaffold Co., Fla.App., 1st Dist.1962, 148 So. 2d 38; May v. J. M. Montgomery Roofing, 3d Dist.1963, 158 So. 2d 147 and Gross v. Rudy’s Stone Co., 2d Dist.1965, 179 So. 2d 603. See also decisions cited Sec. 3.6, Alpert’s Florida Workmen’s Compensation Law. . Ibid. . Sec. 440.39: “Compensation for injuries where third persons are liable (1) If an employee, subj…
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Smith v. Ussery, 242 So. 2d 878 (Fla. 3d DCA 1971)…PER CURIAM. Affirmed on authority of Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690; Miami Roofing & Sheet Metal Co. v. Kindt, Fla.1950, 48 So. 2d 840; May v. J. M. Montgomery Roofing Co., Fla.App.1963, 158 So. 2d 147.…
Authorities Cited
- Jones v. Fla. Power Corp., 72 So. 2d 285 (Fla. 1954)
- Miami Roofing & Sheet Metal Co. v. Kindt, 48 So. 2d 840 (Fla. 1950)