       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

             WILSON CICERON and ROSIE CICERON, his wife,
                            Appellants,

                                     v.

                        SUNBELT RENTALS, INC.,
                              Appellee.

                              No. 4D13-3216

                              [April 15, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No. CACE 10-019219
(12).

   Rodrigo L. Saavedra, Jr. and Michael I. Pugliese of Rodrigo L. Saavedra,
Jr., P.A., Fort Lauderdale, for appellants.

   Richard A. Sherman, Sr. and James W. Sherman of Richard A.
Sherman, P.A., Fort Lauderdale, and Joel R. Wolpe of Wolpe, Leibowitz &
Fernandez, LLP, Miami, for appellee.

CONNER, J.

   Wilson Ciceron and Rosie Ciceron appeal the trial court’s order granting
final summary judgment in favor of Sunbelt Rentals, Inc. (“Sunbelt”) in
this negligence action against Sunbelt after Wilson Ciceron (“Ciceron”)
suffered an injury while working on a construction site. Ciceron argues
that the trial court erred in determining that Sunbelt was a subcontractor
on the project entitled to horizontal immunity pursuant to section
440.10(1)(e), Florida Statutes (2010). We agree and reverse.1

              Factual Background and Trial Court Proceedings

   Butters Construction (“Butters”) was the general contractor for the
renovation of a large retail store. Butters subcontracted work to Ciceron’s

1Because we reverse on the determination that Sunbelt was a subcontractor, we
do not address whether an exception applies for horizontal immunity based on
gross negligence by the subcontractor.
employer, Wildcat Demolition, for demolition work on the site. In addition,
Butters also subcontracted work to Associated Industries (an electrical
contractor) and D&D Welding (a welding contractor).             Associated
Industries and D&D Welding rented scissor lifts from Sunbelt under
separate contracts. The rental agreements provided that Sunbelt was to
deliver the scissor lifts, repair them if necessary (not including routine
maintenance), and pick them up.2 The scissor lifts were to remain at the
construction site while the construction project was ongoing. Sunbelt also
would provide training to the employees of Associated Industries and D&D
Welding on the operation of the scissor lifts as needed. However, Sunbelt
employees were not responsible for operating the scissor lifts on site after
delivering them, except as necessary for repairs.

     Ciceron’s complaint alleged that on the day of the accident, Ciceron was
working for his employer on the construction site. At the site, one of the
scissor lifts had become inoperable. A Sunbelt employee came to the site
and attempted to remove the inoperable scissor lift with a truck that had
a broken winch. Ciceron alleged that the Sunbelt employee was unable to
load the scissor lift onto the truck and summoned the assistance of
Ciceron and his co-workers to assist with the loading of the scissor lift,
directing the loading operation by instructing Ciceron and his co-workers
on how to position the lift. During the course of loading the scissor lift
onto the truck, Ciceron suffered serious bodily injury resulting in the
amputation of his leg. Ciceron alleged that Sunbelt owed a duty of care to
remove the scissor lift from the job site in a safe manner so as to avoid
injury to those in the area. It was further alleged that Sunbelt breached
this duty by utilizing insufficient and inexperienced personnel in the
removal of the broken scissor lift, negligently directing the loading of the
lift, and by utilizing a truck with a broken winch, creating the dangerous
condition of loading the scissor lift onto the truck without the proper
equipment.

   Sunbelt moved for summary judgment, arguing that Ciceron had
already received worker’s compensation benefits from his employer,
Wildcat Demolition, and that the negligence and loss of consortium claims
against Sunbelt were barred by horizontal immunity under worker’s
compensation statutes. Attached to the motion for summary judgment
was an affidavit of Sunbelt’s representative, attesting that Sunbelt had
worker’s compensation insurance in effect on the day of the accident and
that Sunbelt was a subcontractor of Associated Industries and D&D

2Deposition testimony indicated that Associated Industries and D&D Welding,
not Sunbelt, were responsible for all routine maintenance, such as checking and
adding fuel, checking oil, and replacing water in batteries.

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Welding. In addition, Sunbelt filed several deposition transcripts in
support of its motion for summary judgment, contending it was a
subcontractor of Associated Industries and D&D Welding.

   In response, Ciceron filed a memorandum of law in opposition to
Sunbelt’s motion for summary judgment, pointing out that there were
factual disputes as to how the incident occurred and arguing that Sunbelt
merely rented scissor lifts to Associated Industries and D&D Welding, and
did not qualify as a subcontractor, and was therefore not protected by
horizontal immunity.

    The trial court granted Sunbelt’s motion and entered final judgment in
its favor.

                             Appellate Analysis

   The granting of a motion for summary judgment is reviewed de novo.
Volusia Cnty v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.
2000).

   The primary issue on appeal is whether the trial court erred in granting
summary judgment by determining that Sunbelt was a “subcontractor” on
the construction project, thereby entitling Sunbelt to horizontal immunity
under the workers’ compensation statute.

    “Workers’ Compensation Law 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 Cnty., 928 So. 2d 1163, 1167 (Fla. 2006) (quoting
Taylor v. Sch. Bd. of Brevard Cnty., 888 So. 2d 1, 2 (Fla. 2004)). Workers’
compensation immunity has been broadly expanded by the legislature to
include subcontractors and sub-subcontractors 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.3 See § 440.10, Fla. Stat. (2004). The doctrine of horizontal
immunity, re-enacted in 2004, under section 440.10(1)(e), Florida Statutes
(2004) provides:

3Ramcharitar v. Derosins, 35 So. 3d 94 (Fla. 3d DCA 2010) contains a discussion
of the history in Florida of “vertical immunity” (protecting claims against
subcontractors by employees of a contractor working on the same jobsite) and
“horizontal immunity” (protecting claims against subcontractors by employees of
other subcontractors working on the same jobsite) under the workers’
compensation statute.

                                      3
       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.[4]

§ 440.10(1)(e), Fla. Stat. (2004) (emphasis added).

   The term “subcontractor” is not defined in the worker’s compensation
statute. Appellants assert we should look to the definition of the term
contained in section 713.01(28), Florida Statutes (2010), with regards to
mechanic’s liens. See Goldstein v. Acme Concrete Corp., 103 So. 2d 202,
204 (Fla. 1958) (“[I]n both the mechanics’ lien statutes . . . and the
Work[ers’] Compensation Act . . . the lawmakers use similar phrasing in
dealing with construction projects. We may assume that in both chapters
they intended certain exact words or exact phrases to mean the same
thing. In a broad sense the chapters are in pari materia[] and should, to
the extent that an understanding of one may aid in the interpretation of
the other, be read and considered together.”).

    Section 713.01(28) defines “subcontractor” as:

       a person other than a materialman or laborer who enters into
       a contract with a contractor for the performance of any part of
       such contractor’s contract . . . .

§ 713.01(28), Fla. Stat. (2010) (emphasis added). As can be seen, to fully
understand the concept of “subcontractor” under the mechanics’ lien


4 When the legislature re-enacted horizontal immunity, it also created an
exception to horizontal immunity.

                                     4
statute, it is necessary to consider the definitions of “materialman” and
“contractor” under the same statute.

    Section 713.01(20) defines “materialman” as:

      any person who furnishes materials under contract to the
      owner, contractor, subcontractor, or sub-subcontractor on
      the site of the improvement or for direct delivery to the site of
      the improvement or, for specially fabricated materials, off the
      site of the improvement for the particular improvement, and
      who performs no labor in the installation thereof.

§ 713.01(20), Fla. Stat. (2010) (emphasis added). Section 713.01(8) defines
“contractor” as:

      a person other than a materialman or laborer who enters into
      a contract with the owner of real property for improving it . . .

§ 713.01(8), Fla. Stat. (2010) (emphasis added).

   Although we agree that the definitions within the mechanics’ lien
statute offer some guidance for this case, none of the definitions seem
directly applicable to entities like Sunbelt, which rents equipment for use
by contractors and subcontractors at a construction site and not
incidental to the sale of materials.5 Instead, we find the language of the
workers’ compensation statutes and case law interpreting the statutory
language to be more instructive.

   The core concept for extending workers’ compensation immunity from
tort liability to subcontractors revolves around the notion of a contractor
“subletting” part of its contractual obligation to work to a subcontractor.
Section 440.10(1)(b), provides:

      (b) 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,

5 We also note the goal of the mechanics’ lien law is completely different from the
goal of the workers’ compensation law. For that reason, the protection afforded
to a “subcontractor” under the one law may not be the same under the other law.

                                        5
      except to employees of a subcontractor who has secured such
      payment.

§ 440.10(1)(b), Fla. Stat. (2010) (emphasis added). As observed by the Fifth
District in Adams Homes of Nw. Florida, Inc. v. Cranfil, 7 So. 3d 611, 613
(Fla. 5th DCA 2009), the effect of a contractor subletting part of the work
is “to pass on to another an obligation under a contract for which the
person so ‘subletting’ is primarily obligated.” Thus, the intent of section
440.10 is “to ensure that employees engaged in the same contract work
are covered under worker’s compensation, regardless of whether they are
employees of the general contractor or any of its subcontractors.” Id.
(citations omitted). Stated another way, “[t]he rationale of [section 440.10]
is to equate the situation of work[ers] at a job in which various
subcontractors are functioning under a general contractor with that which
would obtain if the general contractor itself were employing the work[ers]
directly.” Gulf Am. Fire and Cas. Co. v. Singleton, 265 So. 2d 720, 721 (Fla.
2d DCA 1972).

  The notion of a contractor “subletting” parts of the contracted work to
subcontractors has resulted in the case law using the term “statutory
employer” in reference to workers’ compensation immunity. As we said in
Woods v. Carpet Restorations, Inc., 611 So. 2d 1303, 1304 (Fla. 4th DCA
1992):

      The concept of statutory employer, for worker’s compensation
      purposes, is that a contractor who sublets all or any part of
      its contract work is the employer not only of its own employees
      but also of the employees of any subcontractor to whom all or
      any part of the principal contract has been sublet. § 440.10(1),
      Fla.Stat. (1991).

See also Miami Herald Publg. v. Hatch, 617 So. 2d 380 (Fla. 1st DCA 1993).
Important to this case is the principle expressed in Miami Herald, that “[a]n
entity working solely for itself, rather than performing contract work for
another, does not meet the criteria for statutory employer.”6

  Ciceron argues that Sunbelt’s contracts with Associated Industries and
D&D Welding were merely for equipment rental and not for the

6 The requirement for horizontal immunity that a contractor or subcontractor
sublet part of its work to another is consistent with the definition of
“subcontractor” under section 713.01(28), to the extent that section defines a
subcontractor as “a person . . . who enters into a contract with a contractor for
the performance of any part of such contractor’s contract.” (emphasis added).

                                       6
performance of any part of the work to be conducted by Associated
Industries and D&D Welding or the general contractor. Thus, Ciceron
maintains that Sunbelt failed to qualify as a subcontractor and therefore,
was not entitled to horizontal immunity.

   Sunbelt’s opposing argument is that the trial court correctly found that
it qualified for worker’s compensation immunity as a subcontractor,
asserting that in addition to providing the scissor lifts to Associated
Industries and D&D Welding for their use during the construction project,
Sunbelt also provided repair services, some of which were to be performed
onsite, and training services (showing employees of Associated Industries
and D&D Welding how to operate the scissor lifts).

    Review of the record in this case demonstrates that Sunbelt employees
were not being used during the course of construction to operate the lifts
so as to actually incorporate or remove materials into or from the structure
being constructed. Sunbelt was not hired to operate the scissor lifts so as
to assist with any of the welding or structural work which D&D Welding
was under contract to perform. Similarly, Sunbelt was not hired to operate
the scissor lifts so as to assist with any of the electrical work Associated
Industries was under contract to perform. Instead, Sunbelt was hired to
deliver, pick up, and repair the scissor lifts, which on occasion would
involve a repair at the construction site. Sunbelt was also hired to teach
employees of Associated Industries and D&D Welding how to operate the
scissor lifts, if needed. Thus, the facts of this case do not show that either
Associated Industries or D&D Welding sublet to Sunbelt any of the work
it had contracted with Butters to perform.

   We therefore hold that under the facts of this case, Sunbelt was not a
subcontractor protected under section 440.10 (1)(e), and as such, was not
entitled to horizontal immunity. Accordingly, we reverse the trial court’s
order granting its motion for summary judgment, and remand for further
proceedings consistent with this opinion.

   Reversed and Remanded.

DAMOORGIAN, C.J. and TAYLOR, J., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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