       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 29, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-2878
                         Lower Tribunal No. 12-28934
                             ________________


                             Gwendolyn Baker,
                                    Appellant,

                                        vs.

                     Airguide Manufacturing, LLC,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Ronald C.
Dresnick, Judge.

     Russo Appellate Firm, P.A., and Christopher J. Bailey, for appellant.

      Law Offices of Richard A. Sherman, P.A., and Richard A. Sherman and
James W. Sherman; Law Offices of Esther B. Nickas, and Edelberto Farres, for
appellee.


Before ROTHENBERG, LAGOA, and SCALES, JJ.

     ROTHENBERG, J.
      The plaintiff below, Gwendolyn Baker, appeals a final summary judgment

entered in favor of the defendant, Airguide Manufacturing, LLC (“Airguide”),

based on the trial court’s ruling that Airguide was entitled to workers’

compensation immunity. Because we find the trial court correctly found that

Airguide was entitled to immunity under section 440.11(2) of the Florida Statutes

(2010), we affirm.

      Baker began working for a company called Pacesetter in January 2008. The

record establishes that Pacesetter is an employment agency that supplies

employees to shorthanded companies. For the first six months of her employment

with Pacesetter, Baker was placed with various Carmax locations. Then, in July

2008, Pacesetter placed Baker (along with several other Pacesetter employees)

with Airguide, an air conditioning duct manufacturer.

      Baker worked at Airguide without incident for two years, but on July 28,

2010, a machine designed to punch holes in the aluminum air duct parts

unexpectedly activated and injured Baker’s right index finger. Baker’s immediate

supervisor at Airguide, Corine Graham (“Graham”), helped Baker wash the wound

and then called Pacesetter to deal with the issue. Pacesetter sent a driver to pick up

Baker, and Baker was taken back to the Pacesetter facilities, where she filed a

report. Baker was subsequently taken to a doctor’s office and then later to a



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hospital. Baker experienced significant pain and immobility in her finger and had

to undergo physical therapy and rehabilitation. Baker claims she still experiences

pain in the finger to this day.

      Baker successfully filed a workers’ compensation claim with Pacesetter after

her accident, and she was reimbursed for her injury based on the statutorily

prescribed reimbursement amount. Unsatisfied with her recovery amount, Baker

subsequently filed the underlying negligence suit against Airguide on July 24,

2012. After some discovery, Airguide filed a motion for summary judgment,

arguing that it was immune from liability because Baker was either a “borrowed

servant” under common law doctrine or was an employee of a help supply services

company as provided in section 440.11(2) of the Florida Statutes, and therefore,

Baker’s exclusive remedy was through workers’ compensation, which she had

already received.

      The motion for summary judgment cited and relied heavily upon Baker’s

deposition testimony. In that deposition, which was taken on May 21, 2013, Baker

stated that she reported directly to Airguide in the mornings, was trained to use the

machines by Airguide employees, was monitored and reprimanded by Airguide

employees, and was assigned weekly hours and tasks by Airguide management,

but that Pacesetter issued Baker’s paychecks and sent supervisors to the Airguide

premises once or twice per week to check on the Pacesetter employees.



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      Two days before the summary judgment hearing, and four months after

Baker’s deposition, on September 11, 2013, Baker filed an affidavit and an errata

sheet to her deposition that materially conflicted with some of the statements she

had made during her deposition. Based on the changes to her testimony, Baker

argued that there was a genuine dispute over material facts whether Airguide

possessed the requisite degree of control over Baker to establish Airguide’s

immunity under the common law “borrowed servant” doctrine. After some legal

argument on the issue, the trial court granted Airguide’s motion for summary

judgment. Baker filed a motion for rehearing, which the trial court denied, and this

appeal followed.

      Baker contends on appeal that the trial court erred by failing to consider her

affidavit and errata sheet and that it improperly granted Airguide’s motion for

summary judgment because Airguide did not meet its burden of establishing that it

was entitled to workers’ compensation immunity. We disagree.

      As to the first issue, it is well-established Florida law that a party may not

rely on an affidavit that contradicts or repudiates prior deposition testimony simply

to defeat a motion for summary judgment. Ellison v. Anderson, 74 So. 2d 680,

681 (Fla. 1954); United Auto. Ins. Co. v. Seffar, 37 So. 3d 379, 380-81 (Fla. 3d

DCA 2010). In this case, Baker testified in a sworn deposition that Airguide had

nearly complete control over her everyday work activities and that Pacesetter



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merely provided her paycheck. Then, curiously, nearly four months after her

deposition and only two days before the summary judgment hearing, Baker filed

her affidavit and errata sheet to state that she checked in with Pacesetter every

morning, that Pacesetter supervisors often checked on her at Airguide, and that

Airguide had limited authority to direct her work, determine her hours, or

terminate her. These statements clearly contradict Baker’s deposition testimony,

and they evidence an attempt on Baker’s part to contravene her prior testimony and

create a factual dispute regarding Airguide’s ability to control her workplace

conduct—one of the main factors considered under the “borrowed servant”

doctrine.   We accordingly find that the trial court did not err by refusing to

consider the affidavit and errata sheet testimony when granting Airguide’s motion

for summary judgment.

      Although we find that the trial court did not err by rejecting Baker’s

contradictory affidavit and errata sheet, the inadmissibility of the affidavit and

errata sheet is not dispositive. While these two documents may have potentially

created a dispute as to whether Airguide sufficiently established that it was entitled

to immunity under the common law “borrowed servant” doctrine, they create no

dispute as to whether Airguide is entitled to immunity as a “help supply services

company” under section 440.11(2) of the Florida Statutes. Because Airguide is




                                          5
clearly a help supply services company under section 440.11(2), we affirm the trial

court’s ruling on that issue as well.

      As explained by this Court in Cabrera v. T.J. Pavement Corp.:

             Florida’s workers’ compensation act sets forth a comprehensive
      scheme that provides benefits to workers injured during employment.
      This system, which is based on mutual renunciation of common law
      rights and defenses by employers and employees, ensures that injured
      employees who fall within its scope receive swift compensation and
      medical benefits from the employer irrespective of fault or cause of
      injury. In exchange, employers who comply with the workers’
      compensation act receive immunity from suit except in limited
      circumstances.

2 So. 3d 996, 998 (Fla. 3d DCA 2008) (citations omitted).

      As an extension of the immunity conferred on employers by workers’

compensation, the common law “borrowed servant” doctrine was developed to

cover employers that utilize other companies’ employees to complete their work

under circumstances indicating that the borrowing employer is the de facto

employer of the borrowed employee at the time of the injury. See Hazealeferiou v.

Labor Ready, 947 So. 2d 599, 603 (Fla. 1st DCA 2007) (“The doctrine of lent

employment reflects the dual purpose of ensuring that a lent employee is covered

by workers’ compensation and immunizing employers attaining ‘special employer’

status from liability in tort.”). The company “borrowing” employees from another

company is deemed the borrowed employees’ “special employer,” and the special




                                        6
employer is entitled to the same workers’ compensation immunity as the

employees’ actual employer where:

      “(1) there was a contract for hire, either express or implied, between
      the special employer and the employee; (2) the work being done at the
      time of the injury was essentially that of the special employer; and (3)
      the power to control the details of the work resided with the special
      employer.”

Fossett v. Se. Toyota Distribs., LLC, 60 So. 3d 1155, 1158 (Fla. 1st DCA 2011)

(quoting St. Lucie Falls Prop. Owners Ass’n v. Morelli, 956 So. 2d 1283, 1286

(Fla. 4th DCA 2007)).

      In addition to the common law “borrowed servant” doctrine, section

440.11(2) of the Florida Statutes also extends statutory workers’ compensation

immunity to employers utilizing the employees of a “help supply services

company.” Specifically, subsection 440.11(2) states:

      The [workers’ compensation] immunity from liability described in
      subsection (1) shall extend to an employer and to each employee of
      the employer which uses the services of the employees of a help
      supply services company, as set forth in North American Industrial
      Classification System Codes 561320 and 561330, when such
      employees, whether management or staff, are acting in furtherance of
      the employer’s business. An employee so engaged by the employer
      shall be considered a borrowed employee of the employer and, for
      the purposes of this section, shall be treated as any other employee
      of the employer. The employer shall be liable for and shall secure the
      payment of compensation to all such borrowed employees as required
      in s. 440.10, except when such payment has been secured by the help
      supply services company.




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(emphasis added). North American Industrial Classification System (“NAICS”)

Code 561320, which is expressly incorporated into subsection 440.11(2),1 further

defines “help supply services company” by providing:

      561320 Temporary Help Services
             This industry comprises establishments primarily engaged in
      supplying workers to clients’ businesses for limited periods of time to
      supplement the working force of the client. The individuals provided
      are employees of the temporary help service establishment. However,
      these establishments do not provide direct supervision of their
      employees at the clients’ work sites.

      Thus, an employer can establish its right to workers’ compensation

immunity by either meeting the three-prong test for common law “borrowed

servant” immunity or by establishing that the injured employee came from a “help

supply services company” under the terms of the statute at the time the employee

suffered a work-related injury. Hazealeferiou, 947 So. 2d at 603.

      The three-prong common law test requires a substantial factual inquiry,

including proof of either an express or implied contract between the special

employer and the claimant and details regarding the relative control the general

employer and special employer exercised over the employee.              Suarez v.

Transmontaigne Servs., Inc., 127 So. 3d 845, 847-48 (Fla. 4th DCA 2013).

Conversely, the statutory immunity for employers that utilize help supply services


1 Subsection 440.11(2) also incorporates NAICS Code 561330. Code 561330
defines Professional Employer Organizations, and its terms do not apply to this
case.

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companies requires only that the special employer demonstrate that the employee

was acquired from a help supply service company. § 440.11(2); Hazealeferiou,

947 So. 2d at 603.

      We need not engage in the factual determination of whether the three-prong

common law test was met in this case because Pacesetter is clearly a help supply

services company. Pacesetter is a national corporation that leases professional

workers and manual laborers to various companies throughout the United States

for a fee—the very definition of a help supply service company. See Tu-Lane

Invs., Inc. v. Orr, 889 So. 2d 961, 963 (Fla. 1st DCA 2004) (“The definition of

‘help supply services company’ includes ‘employee leasing company.”’ quoting

Caramico v. Artcraft Indus., Inc., 727 So. 2d 348, 349 (Fla. 5th DCA 1999)).

Baker herself testified at her initial deposition and in the subsequently filed errata

sheet and affidavit that Pacesetter was her actual employer, but that she was leased

to various other employers. Indeed, Baker was only one of several Pacesetter

employees that had been sent to work at Airguide to meet Airguide’s labor

demands. Thus, Pacesetter is a help supply service company that is entitled to

workers’ compensation immunity under the terms of the statute.

      Affirmed.




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