                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

ROOF PAINTING BY                    NOT FINAL UNTIL TIME EXPIRES TO
HARTZELL, INC./SUMMIT               FILE MOTION FOR REHEARING AND
HOLDINGS - CLAIMS                   DISPOSITION THEREOF IF FILED
CENTER,
                                    CASE NO. 1D14-0112
      Appellants,

v.

ANDRES HERNANDEZ,
COLORS CONSTRUCTION,
INC. AND GUARANTEE
INSURANCE COMPANY,

      Appellees.


_____________________________/

Opinion filed February 16, 2015.

An appeal from an order of the Judge of Compensation Claims.
William R. Holley, Judge.

Date of Accident: July 26, 2012.

H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for
Appellants.

Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach
Gardens, for Appellees Colors Construction, Inc. and Guarantee Insurance
Company; Richard A. Sicking of Touby, Chait & Sicking, P.L., Coral Gables, for
Appellee Andres Hernandez.
PER CURIAM.

      Roof Painting by Hartzell, Inc. (Hartzell), and its insurance carrier appeal an

order of the Judge of Compensation Claims (JCC), which concludes both Hartzell

and its subcontractor, Colors Construction, Inc., (Colors) were dual employers at the

time of Claimant’s workplace injury. Based on this finding, the JCC ruled that

Hartzell and Colors, through their respective carriers, are equally liable to provide

Claimant with workers’ compensation benefits.          On cross-appeal, Guarantee

Insurance Company (Guarantee), the carrier for Colors, challenges the JCC’s order

binding Guarantee to an interlocutory order striking Color’s defenses for discovery

violations and the JCC’s order disallowing Guarantee’s proposed pretrial

amendment to add a defense based on the “borrowed servant” doctrine.

      We find no error in the striking of Guarantee’s defenses (which would include

a defense based on the “borrowed servant” doctrine), and affirm the issues raised in

the cross-appeal without further comment. However, the JCC’s finding of dual

employment is supported by neither the law nor the evidence here. Therefore, we

reverse that portion of the order on appeal. 1




1
   To the extent a JCC’s order turns on a resolution of the facts, the review standard
is competent substantial evidence; to the extent it involves an interpretation of law,
the standard is de novo. See Mylock v. Champion Int’l, 906 So. 2d 363, 365 (Fla.
1st DCA 2005).

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      Notably, none of the parties below argued a theory of dual employment. The

JCC first raised the possibility at the conclusion of the evidentiary hearing and

subsequently entered an order finding Hartzell and Colors to be dual employers of

Claimant. The undisputed evidence establishes that Hartzell, a contractor, was hired

by a property management company to provide pressure cleaning and staining

services. Hartzell then subcontracted with Colors to provide the labor for the

contracted services. Claimant did no work or tasks other than the pressure cleaning

and staining called for in the subcontract. This court has previously held that “dual

employment occurs when a single employee is under a contract of hire with two

employers, and under the separate control of each, performs services for the most

part for each employer separately, and the service for each employer is largely

unrelated to that for the other.” Interstate Indus. Park v. Afterdeck Rest., 478 So. 2d

852, 854 (Fla. 1st DCA 1985). The evidence does not support a finding of dual

employment here. Even if the JCC could have properly found two contracts of hire

and separate control by both employers, the third part of the test—the services

performed for each employer are largely unrelated—simply is not satisfied by the

evidence, for at the time of his workplace injury, Claimant was performing the same

(indivisible) services for both Hartzell and Colors.

      Section 440.10(1)(b), Florida Statutes (2012), provides that “[i]n case a

contractor sublets any part or parts of his or her contract work to a subcontractor or

                                          3
subcontractors, all 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.” Given the facts in

this case, it is unclear why the JCC did not consider the applicability of this provision

in determining which employer is liable for Claimant’s benefits.            Indeed, the

evidence shows that, in accordance with the express terms of its subcontract with

Hartzell, Colors provided workers’ compensation insurance coverage for its laborers

on the job—including Claimant.

      Accordingly, we reverse that portion of the Final Merits Hearing Order2

finding dual employment and splitting liability for workers’ compensation benefits

between Hartzell and Colors through their respective carriers, and remand for further

proceedings to include consideration of the applicability of section 440.10(1)(b). In

all other respects, the order is affirmed.

      AFFIRMED, in part; REVERSED, in part; and REMANDED.

PADOVANO, CLARK, and MARSTILLER, JJ., CONCUR.


2
  The issue of the employer/employee relationship was determined in a separate
hearing prior to the final merits hearing. The dual employment finding and split
liability ruling are contained in a Final Evidentiary Order Determining
Employee/Employer Relationship that subsequently was incorporated into the Final
Merits Hearing Order. The orders were entered by two different JCCs.
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