final until disposition of timely filed motion for rehearing.
Appeal from non-final orders from the Circuit Court for
Miami-Dade County No. 14-30116, Samantha Ruiz-Cohen, Judge.
Simberg and Diane H. Tutt (Hollywood), for appellant.
& Associates, Chartered, and Annabel C. Majewski; DLD
Lawyers and Frank L. Labrador, for appellee.
ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.
Construction, Inc. ("Fist Construction"), appeals a
partial summary judgment in favor of an injured laborer
(plaintiff below), Santos Obando, precluding Fist
Construction from relying on its affirmative defense of
workers' compensation immunity. We have jurisdiction to
review the order under Florida Rule of Appellate Procedure
defendant in the action below was the general contractor for
a residential construction project in Homestead, Florida. Yet
another defendant was subcontracted to perform roofing work
at the project, and that subcontractor further subcontracted
with Fist Construction to perform some or all of that work. A
foreman and supervisor for Fist Construction, Hector Lopez
(also a defendant below), hired Mr. Obando as a
laborer to perform part of the roofing work that
had been subcontracted to Fist Construction.
Obando alleges that he was injured while performing roof work
at the project in January 2014. Through counsel, Mr. Obando
filed petitions for workers' compensation claims with the
general contractor and the prime roofing subcontractor (not
Fist Construction), but these claims were denied on the basis
that Mr. Obando was not an employee of either of those
companies at the time of the accident. Following the denial,
Mr. Obando filed circuit court tort claims against the
general contractor, the prime roofing subcontractor and its
principal, Fist Construction, and Mr. Lopez.
months after Mr. Obando commenced his lawsuit, the prime
roofing contractor's attorney contacted a claims adjuster
for Fist Construction's workers' compensation carrier
and notified her that Mr. Obando had been injured, with
"multiple employers involved." Mr. Obando testified
that he had no knowledge of, or contact with, Fist
Construction (only with Mr. Lopez), and the owner of Fist
Construction initially provided a letter on behalf of the
company disclaiming any knowledge of Mr. Obando:
This firm has no knowledge of who this person is, as he has
never been employed by us. There never been [sic] an
application for employment filed under that name with this
Company. So, we have no records to produce or forward to
however, Mr. Obando submitted a petition for workers'
compensation benefits to Fist Construction's workers'
compensation carrier. In its response to the petition, the
carrier agreed to pay Mr. Obando's medical bills and
expenses from the hospital emergency room "once they
have been submitted and reviewed, " and to authorize
additional treatment at a health center.
Construction asserted workers' compensation immunity as
an affirmative defense to Mr. Obando's second amended
complaint, and each party filed a motion for partial summary
judgment on that issue. The trial court granted Mr.
Obando's motion, which argued that Fist
Construction's words and actions had waived the immunity
defense under such cases as Ocean Reef Club v.
Wilczewski, 99 So.3d 1 (Fla. 3d DCA 2012), and