JOHN S. HOLLEY, APPELLANT,
v.
A. G. WIMPY AND/OR A. G. WIMPY CO., INC., APPELLEE
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An employee injured in an accident with a truck owned by a hauling company sought damages despite receiving workers' compensation benefits. The court held that the hauling company was a sub-contractor, not a third-party tortfeasor, making workers' compensation the exclusive remedy.
The defendant was a sub-contractor, not a third-party tortfeasor. Under § 440.10 and § 440.11, every employee of a contractor or sub-contractor is covered by workers' compensation insurance, and remedies under the workers' compensation law are the exclusive remedy for employees injured on the job as a result of actions of other employees of either the contractor or sub-contractor.
“We do not agree that defendant company was a third party tortfeasor such as contemplated under § 440.39, but rather came within the provisions of § 440.10(1), Fla. Stats., F.S.A., which provides that every employee of a contractor or sub-contractor shall be covered by workmen's compensation insurance.”
Establishes the court's holding that the defendant was a sub-contractor, not a third-party tortfeasor
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Join FLexlaw to unlock all legal intelligenceJohn Holley, an employee of Ewell Engineering Company, was injured when a bulldozer he operated collided with a truck owned by A. G. Wimpy Co., Inc. E…
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'Appellant, plaintiff in the trial court, appeals from a summary final judgment entered in favor of appellee, defendant below.
Plaintiff, an employee of Ewell Engineering Company, sought to recover damages for injuries he sustained in an accident between a bulldozer operated by him and a truck owned by defendant, A. G. Wimpy Co., Inc. Following the accident, plaintiff received workmen’s compensation benefits from Ewell Engineering Company or its workmen’s compensation insurance carrier.
Ewell Engineering was the general contractor in the construction of a road in Polk County, Florida, and contracted with A. G. Wimpy Co., Inc. to haul limerock fe> the site where the road was being constructed. The limerock was purchased by Ewell Engineering and delivered to a railroad siding. Defendant company then *509transported the limerock in its own trucks to the job site.
Plaintiff contends that defendant company was not a sub-contractor as contemplated by §§ 440.10 and 440.11, Fla.Stats., F.S.A., but a third party tort-feasor under the provisions of § 440.39, Fla.Stats., F.S.A. Section 440.39 provides in part that an employee injured in an industrial accident by the negligence or wrongful act of a third party may accept compensation benefits and still pursue his remedy by action at law against the third party.
We do not agree that defendant company was a third party tort-feasor such as contemplated under § 440.39, but rather came within the provisions of § 440.10(1), Fla. Stats., F.S.A., which provides that every employee of a contractor or sub-contractor shall be covered by workmen’s compensation insurance. Section 440.11, Fla.Stats., F.S.A., provides in effect that remedies under the workmen’s compensation law shall be the exclusive remedy for employees injured on the job as the result of the actions of other employees of either the contractor or sub-contractor. Plaintiff clearly comes under this section.
The cases relied upon by plaintiff in support of his argument involve negligent acts of employees of materialmen supplying various items to the general contractor. In those cases the materialmen have been held to have been third party tort-feasors. See, e. g., Goldstein v. Acme Concrete Corp., 103 So.2d 202 (Fla.1958).
In the instant case the defendant was clearly not a materialman but a sub-contractor. Cf. Vargo v. Carter, 188 So.2d 402 (D.C.A.Fla.1966). For these reasons the trial court was correct in entering summary final judgment in favor of defendant company, and we affirm.
PIERCE and HOBSON, JJ., concur.
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Gulf Am. Fire & Cas. Co. v. Singleton, 265 So. 2d 720 (Fla. 2d DCA 1972)…loyed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.” . Fla.App.2d 1966, 192 So. 2d 508. . Fla.App.3d 1958, 105 So. 2d 578. . Fla.App.1st 1962, 148 So. 2d 38. . Hunt v. Ryder Truck Rentals, Inc., Fla.1968, 216 So. 2d 751. . Fla.1958, 103 So. 2d 202. . Jones v. Florida Power Corp., Fla.1954, 72 So. 2d 285; Foulk v. Perkins, Fla.App…
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Shirley v. Asbell, 197 So. 2d 828 (Fla. 1st DCA 1967)…rently was, supported the defendant’s contention that he was a subcontractor. The result thusly reached by the jury was consistent with recent rulings of our sister courts in Vargo v. Carter, 188 So. 2d 402 (Fla.App. 4th, 1966), and Holley v. Wimpy, 192 So. 2d 508 (Fla.App.2d, 1966), in which the provisions of Sections 440.10 and 440.11 were invoked in attempted third party actions against subcontractors engaged in the same general enterprises as the plaintiff’s employer. Affirmed. WIGGINTON, Acting C. J.,…
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Holley v. A. G. Wimpy Co., Inc., 201 So. 2d 461 (Fla. 1967)…Certiorari denied without opinion. 192 So. 2d 508.…
Authorities Cited
- Goldstein v. Acme Concrete Corp., 103 So. 2d 202 (Fla. 1958)
- Vargo v. Carter, 188 So. 2d 402 (Fla. 4th DCA 1966)