DAVID L. DODGE AND DORIS M. DODGE, HIS WIFE, APPELLANTS,
v.
WILLIAM E. ARNOLD COMPANY AND FIDELITY & CASUALTY COMPANY OF NEW YORK, APPELLEES
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Electrician Dodge was injured at a construction site and sued the general contractor (William E. Arnold Company) for negligence. The general contractor claimed immunity under Florida's workers' compensation statute (Chapter 440), and the trial court granted summary judgment in its favor. The appellate court reversed, finding that material factual questions existed about whether the contractor was obligated to provide workers' compensation benefits, which is the prerequisite for statutory immunity.
Summary judgment was improper because material factual issues remained unresolved. The court cannot grant immunity under Section 440.10 unless it is established that the defendant was obligated under Chapter 440 to provide workers' compensation benefits. The unclear relationship between Olson Electric, Paxon Electric, and Dodge, and the uncertain employment arrangement, prevented summary disposition.
[1] A summary judgment may not be properly granted unless there is no issue of material fact.
[2] The burden is upon the party moving for summary judgment to demonstrate that there are no issues of material fact.
Previewing 2 of 4 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“The immunity afforded under Section 440.10 arises from the liability of an employer to secure the compensation required by the act.”
Establishes that immunity requires the defendant to have been obligated to provide workers' compensation benefits
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Join FLexlaw to unlock all legal intelligenceDavid Dodge, a journeyman electrician, was injured while working at a building site due to alleged negligence of an employee of William E. Arnold Comp…
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PER CURIAM.
Appellants, plaintiffs in the trial court, seek review of a final summary judgment in favor of the defendant there, appellee here. Appellant Dodge, a journeyman electrician, while working at his trade on a building site, was injured as a result of the alleged negligence of an employee of appel-lee. Appellee was general contractor for the job and Paxon Electric Company was a subcontractor. At the time of the incident giving rise to this controversy plaintiff was “employed” by Olson Electric Company which company provided and paid workmen’s compensation benefits to Dodge. By virtue of an unwritten agreement, the provisions of which are not clear from the record, Olson Electric furnished Dodge and other electricians to Paxon Electric Company for the performance of the latter’s subcontract. Dodge sued the general contractor, William E. Arnold Company, for damages sustained as a result of his injuries and the latter asserted a defense of immunity under the provisions of Chapter 440, Florida Statutes, specifically Section 440.11.
The parties agree that unless the record establishes that appellee was obliged under Chapter 440, Florida Statutes, to provide the compensation required by the act for appellant then the chapter affords no immunity. The immunity afforded under Section 440.10 arises from the liability of an employer to secure the compensation required by the act.
It is axiomatic that a summary judgment may not be properly granted unless there is no issue of material fact. (Connell v. Sledge, 306 So. 2d 194 (Fla. DCA 1st 1975)). The burden is upon the party moving for summary judgment to demonstrate that there are no issues of material fact and there is no burden upon the party moved against to “fill the gaps in the record”.
Sub judice the record is unclear as to the basis upon which the trial court determined immunity. Neither is the relationship or arrangement between Olson Electric Company and Paxon Electric Company made clear. The record is insufficient, for instance, for either the trial court or this court to determine whether or not Olson Electric Company was a subcontractor or a sub-subcontractor or whether appellant was a “loaned employee”. We determine therefore that the summary judgment here appealed was premature.
REVERSED.
BOYER, C. J., MILLS, J., and JOPLING, WALLACE, Associate Judge, concur.
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Cited By
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Dodge v. William E. Arnold Co. & Fid. & Cas. Co. of N.Y., 373 So. 2d 98 (Fla. 1st DCA 1979)…ies suffered by Dodge; and the record was found insufficient for either the trial court or this court to determine whether Olson (Dodge’s employer) was a subcontractor, a sub-subcontractor, or a “loaned employee”. Dodge v. William E. Arnold Company, 343 So. 2d 1359 (Fla. 1st DCA 1977). During the proceedings on remand which culminated in the final summary judgment now under attack the parties stipulated that Olson was neither a materi-alman nor a laborer, and that Dodge was not a loaned employee. The issue of…
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Gaston Lemelin v. Gensler, 570 So. 2d 1131 (Fla. 3d DCA 1990)…napplicable, there is no way to determine which event occurred last. With such gaps in the record as to material evidence, the defendant has not demonstrated conclusively the nonexistence of any genuine issue of fact. Dodge v. William E. Arnold Co., 343 So. 2d 1359 (Fla. 1st DCA 1977). Reversed and remanded for further appropriate proceedings.…
Authorities Cited
- Grady Scott Connell v. Sledge, 306 So. 2d 194 (Fla. 1st DCA 1975)