JAMES C. SHIRLEY, APPELLANT,
v.
EUGENE D. ASBELL, APPELLEE
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Shirley, an employee injured by a rock falling from a truck during beach erosion work, sued truck owner Asbell for negligence. The court affirmed judgment for Asbell, holding that Asbell qualified as a subcontractor whose worker's compensation immunity barred the negligence action under Florida law.
The court affirmed the jury verdict for Asbell, holding that sufficient evidence supported a finding that Asbell was a subcontractor and therefore entitled to the exclusive remedy provision of Sections 440.10 and 440.11 of the Florida Statutes, which barred Shirley's negligence action.
“if the defendant indeed were a subcontractor as he claimed to be by his defense, then the plaintiff was by law precluded from recovering except under the Workmen's Compensation Law.”
Establishes the legal consequence of subcontractor status: exclusive worker's compensation remedy.
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Join FLexlaw to unlock all legal intelligenceShirley was employed by a general contractor performing beach riprap placement work after a hurricane. The general contractor contracted with Imler Ea…
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The plaintiff, James C. Shirley, appeals from a final judgment entered against him pursuant to an adverse jury verdict.
The appellant Shirley was an employee of a general contractor engaged in the placement of riprap, or rocks, upon a beach near Jacksonville Beach, Duval County, Florida, to prevent further erosion after a severe hurricane. To this end, the general contractor entered into a contract with Im-ler Earth Movers, Inc. whereunder the latter corporation would provide trucks and drivers to haul the riprap on a contractual basis. The Imler Company, not having sufficient equipment of its own to carry out its contract with the general contractor, entered into an oral agreement with Asbell, the defendant below and appellee here, whereunder Asbell would provide his truck and a driver therefor to Imler. It is quite clear from the record here that the truck contracted for was no mere pickup. It *829was a piece of specialized heavy equipment designed for use in road building and other heavy construction such as that being accomplished on the beach project.
While in the course of performing his employment for the general contractor, Shirley was injured by a rock which fell from Asbell’s truck at a time when As-bell himself was the driver. For such injuries, Shirley brought this negligence action against Asbell.
By his answer, Asbell interposed an amended first defense by which he contended the plaintiff’s lawful remedy was under the Workmen’s Compensation Law in that the defendant was a subcontractor of a subcontractor of the general contractor who was admittedly the employer of the plaintiff. The trial court denied plaintiff’s motion to strike that defense, correctly ruling that if the defendant indeed were a subcontractor as he claimed to be by his defense, then the plaintiff was by law precluded from recovering except under the Workmen’s Compensation Law. The issue was thusly joined on whether there existed facts to permit the invocation of Sections 440.10 and 440.11, Florida Statutes, F.S.A., which provide such exclusive remedy.
The factual conflicts were resolved by the jury under the trial judge’s instructions in favor of the defendant. Examination of the record in this cause and consideration of the briefs and arguments lead us to the conclusion that there was sufficient evidence presented to the jury which, if believed, as it apparently 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., and JOHNSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Int'l Builders OF Fla., Inc. v. Stevens, 217 So. 2d 101 (Fla. 1968)…of a subcontractor who has secured such payment.” F.S. 440.10, F.S.A. . Fla.1950, 48 So. 2d 840, 843. . Fla.App.2d Dist.1960, 122 So. 2d 574. . Carter v. Sims Crane Service, Inc., Fla.1967, 198 So. 2d 25. See also Shirley v. Asbell, Fla.App.1967, 197 So. 2d 828, and Jones v. Fla. Power Corp., Fla.1954, 72 So. 2d 285.…
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Womble v. Raber, 334 So. 2d 827 (Fla. 2d DCA 1976)…where there is no express legislative mandate to the contrary, that a co-employee or fellow servant is a ‘third party tort-feasor’ within the meaning of our Workmen’s Compensation Act. Raber relies heavily on Shirley v. Asbell, Fla.App. 1st, 1967, 197 So. 2d 828. There, a general contractor engaged in the placement of rocks upon a beach contracted with Imler Earth Movers, Inc. to provide trucks and drivers to haul the rock. Not having sufficient equipment of its own to carry out the contract, Imler entered…
Authorities Cited
- Vargo v. Carter, 188 So. 2d 402 (Fla. 4th DCA 1966)
- Holley v. A. G. Wimpy and/or A. G. Wimpy Co., Inc., 192 So. 2d 508 (Fla. 2d DCA 1966)