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In Morera v. Waste Management Inc. of Florida, 42 Fla. L. Weekly D625b (Fla. 4th DCA Mar. 15, 2017), the 4th DCA upheld the trial court's order granting summary judgment in favor of Waste Management on workers' compensation immunity grounds. While the 4th DCA's opinion did not provide many facts, Waste Management had apparently contracted the services of Waste Collection, a help supply services company. Morera sued Waste Management for injuries he sustained in the course and scope of his employment with Waste Collection, at a time when he was acting in furtherance of Waste Management's business.

The 4th DCA explained that pursuant to the operation of § 440.11(2), Fla. Stat., Morera was considered a borrowed employee of Waste Management. Accordingly, Waste Management was entitled to the same immunity protections as would apply to any of its employees.

The 4th DCA also determined that the trial court had not abused its discretion in refusing to consider certain deposition testimony. The 4th DCA noted that the deposition had not been completed, that the defendant against whom the testimony was offered had not been a party in the case when the deposition was taken, and that no party with the same interest as the defendant had been present during the deposition.

The 4th DCA explained that to use a deposition on the authority of Florida Rule of Civil Procedure 1.330(a), the party against whom it is offered must have been "present or represented at the taking of the deposition or [have] had reasonable notice of it."

 


This summary was prepared by John Daly of our firm.


John Daly

 

 

42 Fla. L. Weekly D625b

 

Torts -- Workers' compensation immunity -- Special employer -- No error in entering summary judgment in favor of help supply services company contractor based on finding that contractor was acting as plaintiff's special employer where record conclusively showed that plaintiff was employee of help supply services company -- With respect to claims of intentional conduct and negligent hiring, among others, brought against help supply services company based upon conduct of worker who was operating conveyor belt at time plaintiff was injured, evidence showed that worker operating conveyor belt was not employed by help supply services company -- Evidence -- No abuse of discretion in refusing to consider worker's partially completed deposition as evidence where the deposition was taken prior to help supply services company becoming party to suit and no party with the same interest was present at the deposition

ANDRES MORERA, Appellant, v. WASTE MANAGEMENT INC. OF FLORIDA, a Florida corporation, TWIN LAKES LAND RECLAMATION, INC., a Florida corporation, WASTE COLLECTION, INC., a Florida corporation, and GL STAFFING SERVICES, INC., a Florida corporation, Appellees. 4th District. Case No. 4D14-3135. March 15, 2017. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Mily Rodriguez Powell, Judge; L.T. Case No. 12-013045 CACE (03). Counsel: Roy D. Wasson of Wasson & Associates, Chartered, Frank L. Labrador and Mary Margaret Schneider of Demahy, Labrador, Drake, Victor & Cabeza, and Jose Manuel Francisco, Miami, for appellant. Steven H. Osber and Emily A. Thomas of Kelley, Kronenberg, P.A., Fort Lauderdale, for appellees Waste Management Inc. of Florida and GL Staffing Services, Inc.

(WARNER, J.) We affirm the final summary judgment in favor of defendants/appellees Waste Management Inc. of Florida and GL Staffing Services, Inc., in a suit for personal injuries. The trial court found that Waste Management had immunity from appellant's claims under Florida's Worker's Compensation Act because it was acting as appellant's "special employer." We conclude that final summary judgment was properly entered because the record conclusively shows that Waste Management was immune from liability pursuant to section 440.11(2), Florida Statutes (2010), as appellant was an employee of Waste Collections, a help supply services company, as defined in Standard Industry Code Industry Number 7363 of the U.S. Department of Labor Standard Classifications.1 Although appellant argues on appeal that he should be considered as employed by a facilities support management service, defined in a separate standard, he did not make this argument to the trial court. Therefore, it is not preserved. See Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321 (Fla. 1st DCA 2011).

As to GL Staffing Services, appellant had filed suit against it for intentional conduct and negligent hiring, among other claims, based upon the conduct of worker Juarez, who was operating the conveyor belt at the time appellant was injured and whom appellant claimed was employed by GL. If GL did not employ Juarez, then it had no liability to appellant. On summary judgment, the evidence presented, including wage receipts and other documents, showed that Juarez was employed by Waste Collections, thus making him a co-employee of appellant. There was no evidence presented that GL employed appellant and was thus in any way liable. The trial court did not abuse its discretion in refusing to consider Juarez's partially completed deposition, during which, appellant claimed, Juarez had testified he was a GL employee, not a Waste Collection employee. The deposition was cut short because of Juarez's transportation problems, and the parties were unable to locate him to complete the deposition. The deposition was taken prior to GL becoming a party to the suit, and no party with the same interest as GL was present. To use a deposition on the authority of Florida Rule of Civil Procedure 1.330(a), the party against whom it is offered must have been "present or represented at the taking of the deposition or who had reasonable notice of it[.]" Moreover, as we read the excluded deposition, Juarez did not say that he was employed by GL, but merely that GL sent him to the job site. The conclusive evidence of wage receipts and other documents show that Juarez was employed by Waste Collection, the help services contractor, and not GL. Therefore, the trial court did not err in granting summary judgment.

Affirmed. (GERBER and KUNTZ, JJ., concur.)

__________________

1. Standard Industry Code Industry Number 7363 is incorporated through section 440.11(2), Florida Statutes, which provides:

The immunity from liability described in subsection (1) shall extend to an employer and to each employee of the employer which utilizes the services of the employees of a help supply services company, as set forth in Standard Industry Code Industry Number 7363, when such employees, whether management or staff, are acting in furtherance of the employer's business. An employee so engaged by the employer shall be considered a borrowed employee of the employer, and, for the purposes of this section, shall be treated as any other employee of the employer.

§ 440.11(2), Fla. Stat.





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