FORREST YAEGER, APPELLANT,
v.
LORA REALTY, INC., ET AL., APPELLEES
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Summary judgment for defendants was reversed because they failed to establish all elements of the workers' compensation bar defense, specifically that plaintiff was engaged in the same contract work of a common employer.
Defendants must establish all elements of the workers' compensation bar affirmative defense, including that the plaintiff was engaged in the same contract work of a common employer, and an admission that plaintiff's employer was merely "a subcontractor" does not eliminate the genuine issue of material fact.
[1] To invoke the workers' compensation bar as an affirmative defense in a third-party action, a defendant must establish all elements of the defense, including that the plai…
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Court explaining the standard for summary judgment on affirmative defenses
Plaintiff Yaeger was injured and received workers' compensation payments. Defendants Tolin and Henry Paul Inc. sought summary judgment based on the af…
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The trial court entered a summary final judgment for two of the defendants, Frank D. Tolin, doing business as Frank D. Tolin Construction Company, and Henry Paul, Inc., in a personal injury action. The summary judgment was entered upon the ground that the facts presented established, without issue, the affirmative defense of these defendants that the plaintiff was barred from recovery because the plaintiff had received workman’s compensation payments, see F.S. § 440.10 and 440.11, F.S.A. There was a genuine issue of material fact as to whether the plaintiff’s employer was a subcontractor upon the same job with the defendants-appellees at the time of the injury. The appellees urge that the issue was eliminated by plaintiff’s failure to respond to a request for admission that “Plaintiff’s employer, IDEAL ROOFING *891COMPANY was doing roofing work as a subcontractor.”
We hold that the issue was not eliminated by the admission that plaintiff’s employer was “a subcontractor.” It is necessary for defendants to establish all of the elements of its affirmative defense, see Jones v. Fla. Power Corp., Fla.1954, 72 So. 2d 285. In the present case, the defendants did not establish without genuine issue that the plaintiff was, at the time of his injury, “engaged in the same contract work of a common employer.”
The summary final judgment must, therefore, be reversed and the cause remanded for further proceedings.
Reversed and remanded.