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Ramsey v. Dewitt Excavating, Inc.

Florida Court of Appeals, Fifth District

June 15, 2018

KIMBERLY M. RAMSEY AND DELMAS RAMSEY, JR., AS PERSONAL REPRESENTATIVES OF THE ESTATE OF DELMAS RAMSEY, III, Appellants,
v.
DEWITT EXCAVATING, INC. AND DAVID E. GUBBINS, SR., Appellees.

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

          Appeal from the Circuit Court for Lake County, Mark J. Hill, Judge.

          Andrew B. Greenlee, of Andrew B. Greenlee, P.A., Sanford and Michael B. Scoma, of Scoma Law Firm, Clermont, for Appellants.

          Sharon C. Degnan and Sebastian C. Mejia, of Kubicki Draper, Orlando, for Appellees.

          PALMER, J.

         Kimberly and Delmas Ramsey, Jr., as personal representatives of the Estate of Delmas Ramsey, III (their deceased son), appeal the final summary judgment entered by the trial court, ruling that workers' compensation immunity barred their liability claims against David Gubbins and DeWitt Excavating, Inc. (DeWitt). We affirm as to DeWitt, but reverse as to Gubbins.

         The industrial accident resulting in Ramsey's death took place while Ramsey was working for DeWitt and with Gubbins, a fellow employee. The parents' complaint alleged that Gubbins and DeWitt were liable for operating a cement-mixing pug mill while Ramsey was still inside of the mixing box, causing his death. DeWitt and Gubbins filed a motion seeking the entry of summary judgment in their favor, arguing that the parents' wrongful death claims were barred by workers' compensation immunity. The court granted the motion, and this appeal followed.

         The party moving for summary judgment

bears the burden of establishing that, based on the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other material as would be admissible in evidence on file, there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Summary judgment evidence must be considered in the light most favorable to the non-moving party, and if the record raises the possibility of any genuine issue of material fact or even the slightest doubt that an issue might exist, summary judgment is improper.

Penton Bus. Media Holdings, LLC v. Orange County, 236 So.3d 495, 497 (Fla. 5th DCA 2018) (citations omitted) (internal quotation marks omitted). A final order entering a summary judgment is reviewed de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).

         In R.L. Haines Construction, LLC v. Santamaria, we summarized the law relating to workers' compensation immunity, explaining that "employers in compliance with the Workers' Compensation Law are immune from their employees' common law negligence actions for damages arising from work-related injuries." 161 So.3d 528, 530 (Fla. 5th DCA 2014) (citing Bakerman v. Bombay Co., 961 So.2d 259, 262 (Fla. 2007)). However, section 440.11(1)(b) of the Florida Statutes (2013) creates an exception to workers' compensation immunity as to employers and employees acting in furtherance of the employer's business. The statute reads, in relevant part, as follows:

440.11 Exclusiveness of liability.-
(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability . . ...

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