               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT


LEONIREZ HEREDIA,                             )
                                              )
             Appellant,                       )
v.                                            )       Case No. 2D18-4127
                                              )
JOHN BEACH & ASSOCIATES, INC.,                )
and MICHAEL MELENDES GROSS,                   )
                                              )
             Appellees.                       )
                                              )

Opinion filed July 24, 2019.

Appeal from the Circuit Court for
Hillsborough County; Robert A. Foster, Jr.,
Judge.

Rolando J. Santiago and Gregory S.
Grossman of RJS Law Group, Apollo
Beach, for Appellant.

Carri S. Leininger of Williams, Leininger &
Cosby, P.A., North Palm Beach, for
Appellee John Beach & Associates, Inc.

No appearance for remaining Appellee.


LUCAS, Judge.

             Leonirez Heredia appeals the circuit court's entry of a final summary

judgment in favor of John Beach & Associates, Inc. (JBA) and Michael Gross, the

defendants below. The circuit court was apparently persuaded that the plaintiff's
negligence claim was one between two subcontractors in horizontal privity under the

Workers Compensation Law, §§ 440.01-60, Fla. Stat. (2017), and that, as such, the

defendants were entitled to workers compensation immunity from the plaintiff's claim.

Because the record does not support that determination, we reverse the circuit court's

judgment.

              In 2015, Lennar Homes, LLC (Lennar) was developing a tract of land it

owned in Riverview into a residential community known as Oaks at Shady Creek.

Although the record is somewhat sparse as to what were Lennar's precise plans for this

property, it is undisputed that Lennar was, at all times relevant, the fee simple owner of

Oaks at Shady Creek. That is, Lennar was developing Lennar's own property, not

someone else's.

              From the record before us, it appears that Mr. Heredia was an employee

of QGS Development, Inc. (QGS), a company that Lennar had hired to perform road

work in the Oaks at Shady Creek subdivision. On April 22, 2015, Mr. Heredia was

working at the site, cleaning dirt from a road. Mr. Gross, an employee of JBA, was

working in the same vicinity as Mr. Heredia. JBA had been retained by Lennar to

provide surveying work for the Oaks at Shady Creek development.1

              Mr. Heredia alleges that Mr. Gross drove his JBA truck negligently by

backing it into him. He filed a complaint against JBA and Mr. Gross in the Hillsborough




              1JBA was working under a "blanket contract" that covered multiple Lennar
subdivisions, a document which describes JBA as a "subcontractor." However, John
Beach, the owner of JBA, testified that he did not know whether Lennar owned any of
the subdivisions JBA worked on, and that his company had also been referred to as a
"vendor." QGS' contract with Lennar identifies Lennar as "Owner" and QGS as
"Contractor."

                                           -2-
County Circuit Court. JBA and Mr. Gross generally denied the complaint's allegations

and, pertinent here, asserted the affirmative defense that Mr. Heredia's negligence

claims were barred under the Worker's Compensation Law.

              The parties engaged in discovery and eventually filed competing motions

for summary judgment on the issue of worker's compensation immunity. In the

defendants' motion, JBA and Mr. Gross argued that QGS and JBA were both

subcontractors of Lennar for the Oaks at Shady Creek development. Further, JBA and

Mr. Gross maintained that QGS, JBA, and Lennar had workers compensation insurance

coverage for this project—QGS' policy provided coverage for its employees; JBA's

policy covered JBA's employees; and Lennar's policy extended coverage that "would

have provided coverage to the Plaintiff." As such, the defendants argued, there was

horizontal privity between the subcontractors, JBA and QGS, so that JBA and Mr. Gross

were immune from civil liability for QGS' employee's injuries.

              Mr. Heredia's motion for summary judgment argued otherwise. He

pointed out that the applicable subsection of the Workers Compensation Law, section

440.10(b), only creates horizontal privity when "a contractor sublets any part or parts of

his or her contract work to a subcontractor or subcontractors." Because Lennar was

developing the Oaks at Shady Creek project for itself as the owner, and not under a

contract Lennar had with any third party, Lennar could not be considered a "contractor"

that was "subletting" work under this section. Accordingly, he argued, neither JBA nor

Mr. Gross were immune from civil liability as a matter of law.

              The circuit court agreed with the defendants. In an unelaborated order, it

granted JBA and Mr. Gross' motion for summary judgment. In a separate and equally




                                           -3-
sparse order, the court denied Mr. Heredia's competing motion for summary judgment.

Those rulings became final in the circuit court's amended final judgment against Mr.

Heredia, which was entered on September 14, 2018. Like the summary judgment

orders that preceded it, the circuit court's amended final judgment contained no findings

or any legal analysis. Mr. Heredia now appeals that judgment.

                     We review a circuit court's entry of summary judgment
             under a de novo standard of review. Herendeen v.
             Mandelbaum, 232 So. 3d 487, 489 (Fla. 2d DCA 2017)
             (citing Volusia County v. Aberdeen at Ormond Beach, L.P.,
             760 So. 2d 126, 130 (Fla. 2000)). A party is entitled to
             summary judgment only "if the pleadings and summary
             judgment evidence on file show that there is no genuine
             issue as to any material fact and that the moving party is
             entitled to a judgment as a matter of law." Fla. R. Civ. P.
             1.510(c).

Dyck-O'Neal, Inc. v. Norton, 267 So. 3d 478, 480 (Fla. 2d DCA 2019).

             In the case at bar, we are called upon to examine the scope and

application of a type of workers compensation immunity,2 commonly known as

"horizontal immunity," between two parties working on a construction project. The

Fourth District succinctly summarized the concept in Ciceron v. Sunbelt Rentals, Inc.,

163 So. 3d 609, 612 (Fla. 4th DCA 2015): "Workers' compensation immunity has been

broadly expanded by the legislature to include subcontractors and sub-subcontractors




             2Subject   to limited exceptions, section 440.11(1) provides that

             [t]he liability of an employer prescribed in s. 440.10 shall be
             exclusive and in place of all other liability, including vicarious
             liability, of such employer to any third-party tortfeasor and to
             the employee, the legal representative thereof, husband or
             wife, parents, dependents, next of kin, and anyone otherwise
             entitled to recover damages from such employer at law or in
             admiralty on account of such injury or death . . . .

                                           -4-
working at a construction site, precluding an employee of one contracting entity injured

on the job from suing another contracting entity working at the same construction site in

tort."

                Section 440.10(1)(b) provides the contours of horizontal immunity:

                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.

The issue here is whether Lennar was a "contractor" that "sublet part or parts" of its

"contract work to a subcontractor or subcontractors" for purposes of section

440.10(1)(b). If Lennar was a "contractor" and it "sublet" a part of its "contract work" to

JBA and QGS to work at Oaks at Shady Creek, then JBA and its employee Mr. Gross

would be immune from tort liability for Mr. Heredia's alleged injuries on the work site. If

Lennar was not subletting contract work to subcontractors, then they would not have

horizontal immunity.

                As it happens, we have delved into this definitional issue before. In

Derogatis v. Fawcett Memorial Hospital, 892 So. 2d 1079, 1083-84 (Fla. 2d DCA 2004),

we explained that for a party to be considered a "contractor" pursuant to section

440.10(1)(b),

                its " 'primary obligation in performing a job or providing a
                service must arise out of a contract.' " Sotomayor v.
                Huntington Broward Assocs. L.P., 697 So. 2d 1006, 1007
                (Fla. 4th DCA 1997) (quoting Gator Freightways, Inc. v.
                Roberts, 550 So. 2d 1117, 1119 (Fla. 1989)). This " 'primary
                obligation' . . . is 'an obligation under the prime contract



                                             -5-
              between the contractor and a third party.' " Sotomayor, 697
              So. 2d at 1007 (citing Miami Herald Publ'g v. Hatch, 617 So.
              2d 380, 381 (Fla. 1st DCA 1993)). "Stated another way, the
              rule is that the entity alleged to be the contractor must have
              'incurred a contractual obligation to a third party, a part of
              which obligation the entity has delegated or sublet to a
              subcontractor whose employee is injured.' " Antinarelli v.
              Ocean Suite Hotel, 642 So. 2d 661, 662 (Fla. 1st DCA 1994)
              (quoting Hatch, 617 So. 2d at 381).

Our court has emphasized that "[t]he statutory terms 'contractor' and 'contract work'

plainly and unambiguously posit a party performing work pursuant to a contract with

another." Slora v. Sun 'n Fun Fly-In, Inc., 173 So. 3d 1099, 1102 (Fla. 2d DCA 2015)

(emphasis added).

              There is no record evidence before us that Lennar was performing any

work, of any kind, on behalf of any third party with respect to the Oaks at Shady Creek

development. To the contrary, the evidence thus far tends to show that Lennar was

acting on its own behalf as the owner of its own property.3 See Cuero v. Ryland Grp.,

Inc., 849 So. 2d 326, 329 (Fla. 2d DCA 2003) (reversing summary judgment that

deemed Ryland a "statutory employer" under section 440.10(1)(b) where "Ryland was

the fee owner of the property upon which it was developing the Bayshore Townhomes

to sell for profit" and "Ryland undertook to develop its own property acting as its own

general contractor"). Therefore, the final summary judgment in favor of JBA and its

employee Mr. Gross was entered in error and must be reversed.

              Reversed and remanded.




              3It appears from the transcript of the summary judgment hearing that the
presiding judge simply misapprehended the distinction between an owner hiring parties
to perform work on the owner's property and an owner hiring a general contractor who,
in turn, hires parties to perform work on the owner's property.

                                           -6-
CASANUEVA and VILLANTI, JJ., Concur.




                                   -7-
