WILLIE B. HALL AND CORA D. HALL, APPELLANTS,
v.
UNIVERSAL DRY WALL, INC., AND TRAVELERS INSURANCE COMPANY, APPELLEES
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The court held that a defendant's assertion of workers' compensation immunity is a matter of defense, not a proper ground for a motion to dismiss.
[1] A defendant's assertion of immunity based on workers' compensation benefits is a matter of defense, not a proper ground for a motion to dismiss.
[2] A trial court errs in dismissing a complaint with prejudice when the asserted defense is not properly subject to a motion to dismiss.
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Join FLexlaw to unlock all legal intelligencePlaintiffs sued for injuries sustained by Mr. Hall while allegedly employed by Universal Dry Wall. The defendants moved to dismiss, asserting workers'…
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PER CURIAM.
Willie B. Hall and his wife, Cora D. Hall, take this interlocutory appeal from an order dismissing their complaint with prejudice as to the appellees, Universal Dry Wall, Inc. and Travelers Insurance Company.
The appellants filed this lawsuit alleging that Mr. Hall was seriously injured while riding as a passenger in a pick up truck owned by Universal Dry Wall and insured by Travelers. At the time of the accident, although Mr. Hall apparently was employed by Universal Dry Wall and engaged in duties within the course and scope of his employment, there are no allegations in the complaint so alleging.
In their complaint, the Halls sought damages against the appellees for injuries arising out of the accident. Dade County was also made a defendant below but is not a party to this appeal.
The appellees moved to dismiss the complaint on the ground that Mr. Hall was an employee of Universal Dry Wall at the time of the accident and has received and accepted workmen’s compensation benefits from his employer and therefore the appellees were legally immune from the claims brought against them in this lawsuit. The trial court agreed and dismissed the com-| plaint with prejudice as to the appellees. This interlocutory appeal followed.
We reverse on the authority of Preston v. Grant Advertising, Inc., 166 So. 2d 219, 222 (Fla.3d DCA 1964) where we stated:
“The allegation of the defendant as to the Workmen’s Compensation Law is a matter of defense and not properly the subject of a motion to dismiss. See Southeastern Title and Insurance Company v. Curtis, Fla.App.1963, 155 So. 2d 855.-."
The appellees’ assertion that they are immune from suit as a result of their payment of workmen’s compensation benefits to the appellant is not a proper ground for a motion to dismiss. Nor have any recent amendments to the Florida Rules of Civil Procedure abrogated or modified the law on this point.
The trial court erred by dismissing the appellants’ complaint with prejudice. This cause is remanded with directions to reinstate the complaint.
Reversed and remanded.
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Citator
Cited By
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Gen. Cinema Beverages OF Miami, Inc. v. Mortimer, 689 So. 2d 276 (Fla. 3d DCA 1995)…to show the existence of a workers' compensation defense. Those cases do not preclude an employer from relying on Rule 1.140(d) — if the workers' compensation immunity issue appears on the of the complaint. See also Hall v. Universal Dry Wall, Inc., 358 So. 2d 1170, 1170-71 (Fla. 3d DCA 1978) (after noting lack of allegations in complaint regarding plaintiff's employment status, court held workers' compensation immunity defense could not be raised by motion to dismiss). . Section 440.39 allows the employee on…
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Walker v. I.T.D. Indus., Inc., 437 So. 2d 230 (Fla. 2d DCA 1983)…The complaint made no allegation regarding workers’ compensation insurance coverage. In this situation, the exclusivity provision of 440.11 is an affirmative defense and cannot be raised by a motion to dismiss. See Hall v. Universal Dry Wall, Inc., 358 So. 2d 1170 (Fla. 3d DCA 1978); Temples v. Florida Industrial Construction Co., 310 So. 2d 326 (Fla. 2d DCA 1975); Preston v. Grant Advertising, Inc., 166 So. 2d 219 (Fla. 3d DCA 1964); Southeastern Title & Insurance Co. v. Curtis, 155 So. 2d 855 (Fla. 3d DCA 1…
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Majewski v. SEA Deck Props., Inc., 386 So. 2d 64 (Fla. 3d DCA 1980)…PER CURIAM. The order dismissing the plaintiff’s complaint with prejudice is reversed on the authority of Sanchez v. Mercy Hospital, 386 So. 2d 42 (Fla. 3d DCA 1980) and Hall v. Universal Dry Wall, Inc., 358 So. 2d 1170 (Fla. 3d DCA 1978). . Reversed and remanded.…
Authorities Cited
- Se. Title & Ins. Co. v. Curtis, 155 So. 2d 855 (Fla. 3d DCA 1963)
- Preston v. Grant Advertising, Inc., 166 So. 2d 219 (Fla. 3d DCA 1964)