       IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA

                                    September 2, 2016

MICHAEL SCOTT WERT; RUBBER    )
APPLICATIONS, INC., a Florida )
corporation; and FCCI COMMERCIAL
                              )
INSURANCE CO.,                )
                              )
          Appellants,         )
                              )
v.                            )                          CASE NOS. 2D14-1525
                              )                                    2D14-2724
MICHAEL CAMACHO and STEPHANIE )                                    2D14-3209
CAMACHO,                      )                          CONSOLIDATED
                              )
          Appellees.          )
                              )

BY ORDER OF THE COURT:

              Upon consideration of Appellants' motion for rehearing and/or clarification

filed April 13, 2016,

              IT IS ORDERED that Appellants' motion for rehearing and/or clarification

is granted in part and denied in part. The opinion issued on March 30, 2016, is

withdrawn, and the following opinion is substituted therefor. The remand language on

the final page has been amended; the remainder of the opinion is unchanged. No

further motions for rehearing or clarification will be considered.

I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.




_______________________________
MARY ELIZABETH KUENZEL, CLERK

cc: Sharon C. Degnan, Esquire
    M. Lance Holden, Esquire
Joel D. Eaton, Esquire
Clerk of Court




                         -2-
                                                IN THE DISTRICT COURT OF APPEAL

                                                OF FLORIDA

                                                SECOND DISTRICT


MICHAEL SCOTT WERT; RUBBER                      )
APPLICATIONS, INC., a Florida                   )
corporation; and FCCI COMMERCIAL                )
INSURANCE CO.,                                  )
                                                )
             Appellants,                        )
                                                )
v.                                              )             Case Nos. 2D14-1524
                                                )                       2D14-2724
MICHAEL CAMACHO and STEPHANIE                   )                       2D14-3209
CAMACHO                                         )             CONSOLIDATED
                                                )
             Appellees.                         )
                                                )
                                                )

Opinion filed September 2, 2016.

Appeals from the Circuit Court for Polk
County; J. Dale Durrance, Judge.

Sharon C. Degnan of Kubicki Draper,
Fort Lauderdale, for Appellants.

M. Lance Holden of Brennan, Holden &
Kavouklis, P.A., Winter Haven; and
Joel D. Eaton of Podhurst Orseck,
P.A., Miami, for Appellees.


MORRIS, Judge.

             Michael Scott Wert and Rubber Applications, Inc., appeal a final judgment

entered against them on Michael and Stephanie Camachos' complaint for negligence

against Wert and vicarious liability against Wert's employer, Rubber Applications, for a
workplace injury suffered by Michael Camacho.1 They also appeal separate final

judgments awarding the Camachos attorneys' fees and costs. Wert and Rubber

Applications argue, among other things, that because Wert and Camacho were not

employees of the same employer, the trial court erred in ruling that the unrelated works

exception to workers' compensation immunity applies in this case to allow the

Camachos to recover from Wert and Rubber Applications. We agree and reverse the

final judgments. Because this issue is dispositive of this case, we do not reach the

other issues raised in this appeal.

              This case involves a workplace accident between employees of two

subcontractors working on a comprehensive maintenance project at the Mosaic fertilizer

plant in Bartow, Florida. During the project, parts of the plant were shut down while

various subcontractors performed maintenance, repairs, and upgrades. Wert was a

superintendent for subcontractor Rubber Applications, and Camacho was employed by

subcontractor Mid-State. Mid-State had set up a staging area for equipment and tools

near a shack rented by Rubber Applications. On December 5, 2010, Wert left a safety

meeting in Rubber Applications' shack, entered his truck, and backed out from the side

of the shack. As he put his truck in drive, he noticed Camacho laying behind his truck.

              In September 2012, Camacho and his wife filed an action against Wert for

negligence and against Rubber Applications for vicarious liability for Wert's negligence.

Wert and Rubber Applications asserted several affirmative defenses, including workers'

compensation immunity. In reply to that affirmative defense, the Camachos alleged that

Camacho and Wert "were assigned primarily to unrelated works within private


              1
              FCCI Commercial Insurance Co. also appeals the final judgments along
with Wert and Rubber Applications.


                                           -2-
employment" and that "[a]ny immunity asserted by the [d]efendants is subject to the

unrelated works exception contained within [section] 440.11(1)," Florida Statutes (2010).

The Camachos filed a motion for summary judgment on the issue of workers'

compensation immunity, and in response, Wert and Rubber Applications argued that

they were entitled to subcontractor statutory immunity under section 440.10(1)(e), which

they also referred to as horizontal immunity. Wert and Rubber Applications also moved

for summary judgment, asserting that Mosaic was the statutory employer of Rubber

Applications, that Mosaic was also the statutory employer of Mid-State, and that Rubber

Applications and Mosaic were dependent horizontal subcontractors of Mosaic working

on the same project. Wert and Rubber Applications alleged that section 440.10(1)(e)

therefore applied. The trial court denied the motions.

             On the morning of trial, Wert and Rubber Applications renewed their

motion, arguing that the unrelated works exception requires two people to be employed

by the same employer and that it does not apply to this case because Wert and

Camacho were not employed by the same employer. Camacho responded that Mosaic

is the statutory employer of its subcontractors' employees. The trial court denied the

motion, and the trial commenced.

             After Camacho presented his case and again at the close of all of the

evidence, Wert and Rubber Applications moved for a directed verdict, arguing that as a

question of law, the unrelated works exception did not apply to a claim of immunity

between two subcontractors in a horizontal relationship, as opposed to a vertical

relationship. Wert and Rubber Applications argued that under section 440.10(1)(e),

they were immune from liability because Camacho did not prove that Wert was grossly




                                          -3-
negligent. They further argued that even if the unrelated works exception applied, both

Wert's and Camacho's employers were engaged in related works. The Camachos

moved for a directed verdict on the basis that the subcontractors are considered

statutory coemployees of Mosaic for purposes of workers' compensation immunity

under section 440.10(1)(b), but that an exception to the immunity applies under section

440.11 because the subcontractors were engaged in unrelated works. The trial court

ruled that the evidence showed that Camacho and Wert were engaged in unrelated

works. The trial court found that they "were not working at the same location, they were

not working, cooperating as a team to accomplish any specific mission. They did not

have similar job duties. They did not have the same supervisor, and they were not

using any of the same equipment." The trial court denied Wert and Rubber

Applications' motion for directed verdict and granted the Camachos' motion. The trial

court accordingly instructed the jury that Wert and Camacho "were primarily engaged in

unrelated work on December the 5th, 2010, and, therefore, the defendants are not

entitled to workers' compensation immunity." The jury found that Wert was 90%

negligent and that Camacho's employer, Mid-State, was 10% negligent.

             Wert and Rubber Applications filed a posttrial motion2 renewing their

motion for directed verdict and reasserting that the unrelated works exception did not

apply given the relationship between the parties. They also claimed that Wert and

Camacho were engaged in related works. The trial court denied the motion and entered

final judgment against Wert, Rubber Applications, and FCCI Commercial Insurance Co.



             2
              The motion was titled "Defendant's Motion for Judgment Notwithstanding
the Verdict, Motion for Judgment in Accordance with Prior Motions for Directed Verdict
and/or Alternatively, Motion for New Trial and/or Remittitur."


                                          -4-
and in favor of Camacho in the amount of $1,870,484.40 and in favor of Camacho's wife

in the amount of $432,043.20.

              On appeal, Wert and Rubber Applications maintain the position they

asserted below that the unrelated works exception does not apply to the facts of this

case. They argue that the trial court erred in denying their motion for directed verdict.

              The Workers' Compensation Law in chapter 440, Florida Statutes, is a

"comprehensive scheme . . . that generally provides workers' benefits without proof of

fault and employers immunity from tort actions based upon the same work place

incident." Aravena v. Miami-Dade County, 928 So. 2d 1163, 1167 (Fla. 2006) (quoting

Taylor v. Sch. Bd. of Brevard Cty., 888 So. 2d 1, 2 (Fla. 2004)). An employer is liable

for compensating an employee who suffers an accidental injury or death arising out of

work performed in the course and scope of employment. See §§ 440.09, .10.

"[S]ection 440.11(1) provides that this liability is 'exclusive and in place of all other

liability' as to third-party tortfeasors and employees, save for certain legislatively created

exceptions," and "[t]he immunity afforded to the employer under section 440.11(1) also

extends to 'each employee of the employer when such employee is acting in

furtherance of the employer's business.' " Aravena, 928 So. 2d at 1167. "However, this

coemployee immunity does not apply . . . 'to employees of the same employer when

each is operating in the furtherance of the employer's business but they are assigned

primarily to unrelated works within private or public employment.' " Id. (quoting §

440.11(1)). This exception is known as the unrelated works exception.

              In order to establish that Camacho and Wert were coemployees of the

same employer so that the unrelated works exception in section 440.11(1) would apply,




                                             -5-
Camacho relied on section 440.10(1)(b), which addresses contractors and

subcontractors:

              In case a contractor sublets any part or parts of his or her
              contract work to a subcontractor or subcontractors, all of the
              employees of such contractor and subcontractor or
              subcontractors engaged on such contract work shall be
              deemed to be employed in one and the same business or
              establishment, and the contractor shall be liable for, and
              shall secure, the payment of compensation to all such
              employees, except to employees of a subcontractor who has
              secured such payment.

Both sides proceed on the premise that Mosaic is a contractor under section 440.10, but

they disagree on whether subsection (1)(b) of section 440.10 applies to the relationship

between subcontractors Rubber Applications and Mid-State. Wert and Rubber

Applications claim that this statutory employer concept does not apply here because

Wert's employer, Rubber Applications, and Camacho's employer, Mid-State, did not

work under the same contract with Mosaic. Cf. Villalta v. Cornn Int'l, Inc., 110 So. 3d

952, 953 (Fla. 1st DCA 2013) (holding that drywall finisher was statutory employee of

general contractor because "[t]he general contractor for the project subcontracted the

drywall work to [subcontractor], who further subcontracted the drywall finishing to

[another subcontractor]"); Lluch v. Am. Airlines, Inc., 899 So. 2d 1146, 1147-48 (Fla. 3d

DCA 2005) (holding that airline was "statutory employer" of custodian because

custodian worked for janitorial services subcontractor, who had a contract with airline to

provide cleaning services at airport, and applying unrelated works exception because

contractor's employee was coemployee with subcontractor's employee). Wert claims

that if the statutory employer concept in section 440.10(1)(b) were to apply to this

horizontal relationship between Rubber Applications and Mid-State, it would render




                                           -6-
meaningless the immunity for horizontal subcontractor relationships provided in section

440.10(1)(e).

                Section 440.10(1)(e) provides as follows:

                A subcontractor providing services in conjunction with a
                contractor on the same project or contract work is not liable
                for the payment of compensation to the employees of
                another subcontractor or the contractor on such contract
                work and is protected by the exclusiveness-of-liability
                provisions of s. 440.11 from any action at law or in admiralty
                on account of injury to an employee of another
                subcontractor, or of the contractor, provided that:
                1. The subcontractor has secured workers' compensation
                insurance for its employees or the contractor has secured
                such insurance on behalf of the subcontractor and its
                employees in accordance with paragraph (b); and
                2. The subcontractor's own gross negligence was not the
                major contributing cause of the injury.

The First District explained the difference between vertical and horizontal relationships:

                [A] vertical relationship is created when a contractor sublets
                part of the work to a subcontractor, who then further sublets
                work to another subcontractor. . . . In contrast, a horizontal
                relationship exists between subcontractors engaged on the
                same construction project but under different subcontracts
                outside the vertical chain of a contractor to subcontractor to
                sub-subcontractor.

Villalta, 110 So. 3d at 953; see also Ramcharitar v. Derosins, 35 So. 3d 94, 96-97 (Fla.

3d DCA 2010) (explaining the statutory history of vertical and horizontal immunity).

Vertical relationships as set forth in section 440.10(1)(b) are subject to the liability in

section 440.10 and immunity in section 440.11, while horizontal relationships are

subject to the liability in section 440.10 and immunity in section 440.10(1)(e). See

Villalta, 110 So. 3d at 953; see also Amorin v. Gordon, 996 So. 2d 913, 915-18 (Fla. 4th




                                             -7-
DCA 2008) (explaining vertical relationships under section 440.10(1)(b) and horizontal

relationships under section 440.10(1)(e)).3

              Based on the above-cited law, we agree that section 440.10(1)(b) does

not apply here to create an employment relationship of any kind between Rubber

Applications and Mid-State. While Rubber Applications and Mid-State were both

subcontractors of Mosaic and thus employees of Mosaic, they were not part of the same

"contract work" with Mosaic. No vertical relationship existed between Rubber

Applications and Mid-State, and therefore, section 440.10(1)(b) does not "deem[] [them]

to be employed in one and the same business or establishment." It then follows that

because they are not employees of the same employer, the unrelated works exception

in section 440.11 does not apply. Cf. Lluch, 899 So. 2d at 1147-48 (applying unrelated

works exception where contractor's employee injured subcontractor's employee).

              Accordingly, the trial court erred in granting the Camachos' motion for

directed verdict and in instructing the jury that Wert and Rubber Applications were not

entitled to workers' compensation immunity based on the unrelated works exception.

See Marriott Int'l, Inc. v. Perez-Melendez, 855 So. 2d 624, 628 (Fla. 5th DCA 2003) ("[A]

motion for directed verdict should be granted only where no view of the evidence, or

inferences made therefrom, could support a verdict for the nonmoving party and the trial

court determines that no reasonable jury could render a verdict for that party." (citations



              3
               "Section 440.10(1)(b) [requires contractors] to secure coverage for the
employees of subcontractors engaged on sublet contract work." VMS, Inc. v. Alfonso,
147 So. 3d 1071, 1073-74 (Fla. 3d DCA 2014). When such coverage has been
secured, the contractor is immune from suit. Id. And section 440.10 requires
subcontractors to secure coverage for their employees. But there is no comparable
requirement that a subcontractor secure coverage for the employees of a fellow
subcontractor.


                                           -8-
omitted)). We reverse and remand for further proceedings on the Camachos' complaint

for negligence and vicarious liability, in which proceedings Wert and Rubber

Applications may assert their defense of horizontal immunity under section 440.10(1)(e).

We express no opinion on whether Wert and Rubber Applications are entitled to

immunity under that standard. We also reverse the final judgments on costs and

attorneys' fees.

              Reversed and remanded.




WALLACE and CRENSHAW, JJ., Concur.




                                          -9-
