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Mirta Moradiellos, et al. v. Gerelco Traffic Controls, Inc., et al., Case No. 3D14-566 (3rd DCA)

In Moradiellos, the plaintiff appealed a final summary judgment entered in favor of the a defendant subcontractor. The case was filed after the plaintiff’s decedent was run over and killed by a truck owned and operated by his employer, a general contractor, while the decedent was working at night on the Florida Turnpike. The general contractor had been hired by the Florida Department of Transportation to widen the Florida Turnpike over a seventeen mile stretch of the roadway. The general contractor hired a subcontractor to repair and maintain the existing highway lighting during construction. The plaintiff sued several defendants, including the defendant subcontractor, arguing that the subcontractor had failed to maintain a particular high mast light near the accident in working order. The trial court later entered final summary judgment in favor of the defendant subcontractor based on workers compensation immunity. The plaintiff argued that the subcontractor was liable under the unrelated works and the gross negligence exceptions to immunity.

On appeal, the Third District agreed with the trial court, and rejected the plaintiff’s arguments with respect to unrelated works and gross negligence. The plaintiff initially argued that the subcontractor may be held liable for simple negligence because its actions come within the unrelated works exception to workers compensation immunity. The Third District noted that the threshold question with this argument was whether the exception applies to a claim by an employee of the general contractor against a subcontractor who security workers compensation insurance for its employees – as the defendant subcontractor had. The Third District explained that the unrelated works exception applies only to fellow employees. The workers compensation statute provides that an employee is entitled to the same immunity afforded to the employer unless the employee acts with willful and wanton disregard, unprovoked physical aggression, or gross negligence, or the employee and the injured employee are assigned primarily to unrelated works. The unrelated works exception language is contained within the workers compensation provision dealing with immunity for employees, and therefore, it only applies to employees. The statutory definition of employee however expressly excludes a subcontractor who has secured payment of compensation coverage for its employees. Because the defendant subcontractor was a subcontractor who had secured workers compensation coverage for its employees, it was not an employee as the term is defined in the statute, and as such, it was not a fellow employee subject to the unrelated works exception to immunity.

The plaintiff also argued that the defendant subcontractor may be held liable because its actions constituted gross negligence. The Third District ruled, however, that a jury could not have found that the defendant subcontractor was grossly negligence based on the facts in the record. Simple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons or property. Gross negligence is that course of conduct which a reasonable and prudent man would know would probably and most likely result in injury to persons or property. Thus, gross negligence requires (1) circumstances constituting an imminent or clear and present danger amounting to a more than normal or usual peril, (2) knowledge or awareness of the imminent danger on the part of the tortfeasor, and (3) an act or omission that evinces a conscious disregard of the consequences. The lighting conditions created a possibility of harm, but they did not create a condition in which an accident would probably and most likely occur. Therefore, gross negligence was not supported, and the defendant contractor was entitled to workers compensation immunity.

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