FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Escambia County. Frank L.
Charles F. Beall, Jr. of Moore, Hill & Westmoreland,
P.A., Pensacola, and Bobby J. Bradford of Aylstock, Witkin,
Kreis & Overholtz, PLLC, Pensacola, for Appellant.
David Jester of Galloway, Johnson, Tompkins, Burr &
Smith, P.L.C., Pensacola, for Appellee/Cross-Appellant The
Green-Simmons Company, Inc.
Gregory M. Shoemaker of Wade, Palmer & Shoemaker, P.A.,
Pensacola, for Appellees Fisher Thomas, Inc., and Shawn
S. Roumbos of Quintairos, Prieto, Wood & Boyer, P.A.,
Pensacola, for Cross-Appellee.
an appeal from a final summary judgment entered against
Appellant, Charles Gladden, and in favor of Appellees, Fisher
Thomas, Inc. ("Fisher Thomas"), The Green-Simmons
Company, Inc. ("Green-Simmons"), and Shawn Michael
Averett ("Averett"). The issue before us is whether
Gladden can maintain an action against Appellees in tort for
injuries he sustained in the course and scope of employment,
after electing exemption from workers' compensation
coverage as a corporate officer. For the reasons that follow,
we conclude that he cannot and affirm the lower court's
decision, although for reasons different than those
articulated by the court.
action underlying this appeal involves a claim by Gladden
arising from a workplace injury occurring on June 2, 2009,
while Gladden performed flooring installation work at the
Opal Beach Ranger Station. Gladden alleged that he was
severely injured when Averett, an employee of Fisher-Thomas,
lifted materials to him with a forklift. The load was
improperly secured, causing Gladden to fall from the second
floor of the job site, which had no railing or other fall
prevention in place.
time of the incident, Green-Simmons was the general
contractor retained by the National Park Service for the
project. Green-Simmons entered into separate subcontracts
with Fisher Thomas and Wilson Floor Covering, Inc. (Wilson
Floor) to perform work on the contract. Unbeknownst to
Green-Simmons, Wilson Floor entered into a sub-subcontract
with Gladden's company, Chuck Gladden's Carpet &
Vinyl Installation, L.L.C. ("Gladden Carpet"), to
perform the work Wilson Floor was to perform under its
subcontract with Green-Simmons.
contract with the National Park Service required
Green-Simmons and its subcontractors to maintain workers'
compensation insurance, which Green-Simmons, Fisher Thomas,
and Wilson Floor did at all relevant times. As an officer of
Gladden Carpet,  Gladden elected to be exempt from
workers' compensation coverage pursuant to section
440.02(15)(b)1., Florida Statutes (2008). While Gladden
provided a copy of his certificate of exemption to Wilson
Floor, neither Gladden nor Wilson Floor notified
Green-Simmons of the exemption.
sued Green-Simmons, Averett, and Fisher Thomas under a theory
of negligence. Green-Simmons, in turn, filed a third-party
complaint against Wilson Floor. Appellees argued in their
motions for summary judgment that they were immune from suit
because Gladden was a "statutory employee" of
Green-Simmons under the Workers' Compensation
and potentially in line for workers' compensation
benefits. In response, Gladden argued that a corporate
officer who properly elects to be exempt from the
Workers' Compensation Law is excluded from the definition
of an "employee, " thereby precluding a finding of
trial court entered summary judgment in favor of Appellees,
concluding that Gladden was an "employee" under the
Workers' Compensation Law at the time of the accident
notwithstanding his exemption. The court ruled that Appellees
were therefore entitled to workers' compensation immunity
as a matter of law. The court additionally ruled that Wilson
Floor was immune from any claims arising from the allegations
levied by Gladden ...