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Gladden v. Fisher Thomas, Inc.

Florida Court of Appeals, First District

November 15, 2017

CHARLES GLADDEN, Appellant,
v.
FISHER THOMAS, INC., THE GREEN-SIMMONS COMPANY, INC., AND SHAWN MICHAEL AVERETT, Appellees. THE GREEN-SIMMONS COMPANY, INC., Cross-Appellant,
v.
WILSON FLOOR COVERING OF PENSACOLA, INC. Cross-Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         An appeal from the Circuit Court for Escambia County. Frank L. Bell, Judge.

          Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola, and Bobby J. Bradford of Aylstock, Witkin, Kreis & Overholtz, PLLC, Pensacola, for Appellant.

          W. 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 Michael Averett.

          Peter S. Roumbos of Quintairos, Prieto, Wood & Boyer, P.A., Pensacola, for Cross-Appellee.

          PER CURIAM.

         This is 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.[1]

         I.

         The 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.

         At the 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.

         The 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, [2] 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.

         Gladden 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 Law[3] 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 immunity.

         The 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 ...


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