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Fist Construction, Inc. v. Obando

Florida Court of Appeals, Third District

November 29, 2017

Fist Construction, Inc., Appellant,
v.
Santos Obando, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from non-final orders from the Circuit Court for Miami-Dade County No. 14-30116, Samantha Ruiz-Cohen, Judge.

          Conroy Simberg and Diane H. Tutt (Hollywood), for appellant.

          Wasson & Associates, Chartered, and Annabel C. Majewski; DLD Lawyers and Frank L. Labrador, for appellee.

          Before ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.

          SALTER, J.

         Fist 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 9.130(a)(3)(C)(v).

         Another 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[1] to perform part of the roofing work that had been subcontracted to Fist Construction.

         Mr. 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.

         Several 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 anyone.

         Subsequently, 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.

         Fist 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 Timmeny ...


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