Opinion
No. 96-3184.
December 31, 1997.
Appeal from the Circuit Court, Duval County, L. Haldane Taylor, J.
Hendrik Uiterwyk and Associates, Tampa; Mark Hicks and Gary A. Magnarini of Hicks, Anderson Blum, P.A., Miami, for Appellant.
Richard G. Rumrell, Ross L. Bilbrey and Charles T. Moore of Rumrell, Costabel Turk, Jacksonville, for Appellees.
Appellant, Joan Louise Babin, appeals the entry of summary final judgment in favor of appellee, North Florida Shipyards, Inc. (NFS). NFS is one of several defendants named in a lawsuit filed by appellant in connection with the death of her husband, Henry J. Babin. The issues presented concern the interaction and proper application of the immunity provisions of the Florida Workers' Compensation Law and the federal Longshore and Harbor Workers Compensation Act (LHWCA). In addition, there appear to be disputed issues concerning the circumstances of the accident. We reverse the grant of summary final judgment in favor of NFS, and remand the cause for further proceedings.
We have jurisdiction of this cause pursuant to Florida Appellate Procedure Rule 9.110(k). See Aagaard-Juergensen, Inc. v. Lettelier, 540 So.2d 224 (Fla. 5th DCA 1989).
A review of the relationship between Ameri-Force, Inc. and NFS is essential for resolution of this cause. Henry Babin was a welder employed by Ameri-Force, Inc. Ameri-Force is a business which furnishes temporary and special employees to various employers, including NFS. Ameri-Force has secured both Florida Workers' Compensation coverage and federal LHWCA coverage for its employees. Pursuant to an unwritten agreement with NFS, Ameri-Force furnishes workers to NFS on an "as need" basis. Ameri-Force is solely responsible for payment of the wages to its workers assigned to work at NFS. Although NFS may require an Ameri-Force employee to leave the NFS premises, only Ameri-Force supervisors may discharge an Ameri-Force employee. Ameri-Force conducts regular safety sessions for its employees, and Ameri-Force safety officers regularly visit the NFS work site to monitor the safety of its employees. As a first-class welder, Babin was expected to furnish his own equipment.
On July 27, 1994, Babin was working from an aerial lift, the base of which was situated on the NFS pier alongside a barge then under repair. During operation of the aerial lift by an NFS employee, the lift malfunctioned, causing Babin to be thrown to his death. On the date of the accident, Babin had been working at NFS for the preceding one and one-half to two weeks. However, Babin had worked at NFS on other occasions.
Prior to completion of discovery, NFS filed a motion for summary judgment with supporting affidavits. As grounds therefor, NFS alleged that appellant's tort action against NFS is barred by the immunity provisions of section 440.11, Florida Statutes. The summary judgment hearing took place April 15, 1996. On the same date, appellant's counsel filed a memorandum of law in opposition to NFS's motion for summary judgment. The memorandum states in part:
Plaintiff's cause of action is pursuant to the LHWCA, 33 U.S.C. § 905(a), which permits the employee of a subcontractor to sue the contractor in tort even though the employee is receiving compensation benefits from the employer/subcontractor. Babin's employer at the time of his death was Ameriforce, Inc. who had been contracted by NSF [sic] to supply skilled welders to assist in the repair work on a Crowley Maritime vessel being repaired at the NSF [sic] yard in Jacksonville. Ameriforce did supply compensation coverage to BABIN.
As can be seen later in this memorandum, even representatives of the Defendant, NORTH FLORIDA SHIPYARDS, INC., have admitted that Ameriforce was a subcontractor of theirs on the day of the accident.
The memorandum of law presented argument that under maritime law, an employee of a subcontractor is permitted to sue the contractor for tort liability. Appellant also quoted portions of the deposition testimony of Albert Becker, Patrick Rockey, and John Shiffert, in which each deponent stated that Ameri-Force was a subcontractor of NFS. Appellant further argued that Babin was not a borrowed servant and NFS was not a borrowing employer, pursuant to the ninefactor test set forth in Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969).
On April 16, 1996, NFS filed a notice of filing errata sheets directed to the testimony of those deponents who stated that Ameri-Force is a subcontractor of NFS. The corrections state that Ameri-Force is not a subcontractor. On the same date, NFS filed a memorandum of law in support of its motion for summary judgment. The NFS memorandum states in part:
Ameri-Force is a separate and independent company from NFS. Ameri-Force and NFS have investors common to both companies, but Ameri-Force is in no way affiliated with NFS. (John Shiffert dep. P. 14-15; Rockey depo. Oct. 3, 1995, p. 5-9). Ameri-Force is not a subsidiary of NFS. Ameri-Force's president is Patrick Rockey. His deposition was taken twice with regard to this case. Ameri-Force is in the business of providing special or temporary employees to various industries. (Rockey depo. Oct. 3, 1995 p. 47, in 1-2). Ameri-Force's function in this regard is similar to that of Manpower, Accustaff, Jim King and Associates and other well-known temporary staffing companies.
NFS argued that, in effect, NFS was Babin's employer and thus plaintiff/appellant was precluded from tort recovery against NFS. NFS further argued that coverage under the LHWCA did not make this a maritime case, and urged: "This case therefore falls into the `twilight zone' between state law and maritime law." In its memorandum of law, NFS argued that it was entitled to immunity from suit under either Florida or federal law.
In the order granting NFS's motion for summary final judgment, the trial court made factual findings that Babin's survivors are receiving LHWCA benefits from Ameri-Force. The court found that state law rather than admiralty jurisdiction would govern the tort claim, because the incident occurred on a pier located adjacent to navigable waters. The trial court was persuaded by the NFS argument that appellant elected to receive LHWCA benefits "in an area where both LHWCA and state worker compensation benefits are available." The court noted the legislative history of the LHWCA does not indicate that "Congress intended to preempt state law rules of statutory immunity when the LHWCA and state acts have concurrent jurisdiction." Based upon findings that (1) there existed a definite arrangement between NFS and Ameri-Force; (2) Babin worked under the direction and control of NFS employees; (3) Babin worked on projects which furthered the business of NFS, and (4) NFS provided the funds to pay Babin through Ameri-Force's billing procedures, the trial court ruled that Babin was the borrowed servant of NFS at the time of the accident. The trial court concluded that NFS is immune from appellant's tort action, and granted summary final judgment in favor of NFS.
NFS now concedes error in its argument before the trial court that appellant was entitled to choose between either LHWCA or Florida workers' compensation benefits, but "elected" to receive LHWCA benefits. In fact, section 440.09(2), Florida Statutes, expressly precludes receipt of Florida workers' compensation benefits when circumstances dictate that LHWCA benefits apply. This provision states:
(2) Benefits are not payable in respect of the disability or death of any employee covered by the Federal Employer's Liability Act, the Longshoremen's and Harbor Worker's Compensation Act, or the Jones Act. (Emphasis supplied).
LHWCA eligibility is determined by application of the "situs" test pursuant to 33 U.S.C. § 903(a), and the "status" test pursuant to 33 U.S.C. § 902(3). See Hernandez v. Mike Cruz Machine Shop, 389 So.2d 1251, 1252 (Fla. 1st DCA 1980). See also FCCI Mutual Insurance Company v. Cayce's Excavation, Inc., 675 So.2d 1028, 1029 (Fla. 1st DCA 1996); Efferson v. Kaiser Aluminum Chemical Corp., 816 F. Supp. 1103, 1108 (E.D.La. 1993). These provisions state:
§ 903. Coverage
(a) Disability or death; injuries occurring upon navigable waters of United States
Except as otherwise provided in this section, compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel). (Emphasis supplied).
§ 902. Definitions
. . . .
(3) The term "employee" means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, (Emphasis supplied).
It is undisputed in this case that Henry Babin was engaged in employment as a "ship repairman," and that his death was caused by a fall upon a pier adjoining navigable waters of the United States. Since Babin's death occurred in circumstances which satisfied the situs and status tests for LHWCA eligibility, pursuant to section 440.09(2), Florida Statutes, LHWCA benefits constitute the exclusive remedy.
In the subject order, the trial court adopted NFS's argument that the federal and state acts have concurrent jurisdiction. Based on this incorrect premise, the trial court reasoned that appellant chose to receive LHWCA benefits, and appellant's election did not preclude NFS from asserting the state workers' compensation immunity defense "in an area where both LHWCA and state workers' compensation benefits are available."
Because Babin qualified for LHWCA benefits, and his employer, Ameri-Force, provided LHWCA coverage, benefits were not available under the Florida workers' compensation act. See § 440.09(2), Fla. Stat. The federal worker's compensation immunity provision, 33 U.S.C. § 905(a), states in part:
(a) Employer liability; failure of employer to secure payment of compensation
The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, . . . and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death . . . . For purposes of this subsection, a contractor shall be deemed the employer of a subcontractor's employees only if the subcontractor fails to secure the payment of compensation as required by section 904 of this title. (Emphasis supplied).
Section 905(a) was amended in 1984, to add the underscored language. In West v. Kerr-McGee Corp., 765 F.2d 526, 529 (5th Cir. 1985), the court determined the 1984 amendments did not render the borrowed employee doctrine obsolete. 765 F.2d at 330. However, in his concurring opinion in Kerr-McGee, Judge Tate found nothing in the Congressional report to indicate that Congress desired to preserve the precedential effect of any pre-1984 judicial decisions, especially those decisions which were completely contrary to the unambiguous language of the 1984 amendments, stating:
Under the pre-1984 wording of Sections 904(a) and 905(a) of the Act, there may have been room for a construction that the general contractor might be immune from tort suit by a subcontractor's employee if the latter was a "borrowed employee;" or, at least, the Supreme Court apparently so found, in its decision that was immediately and retroactively overruled by the Congress as contrary to the legislative intent and statutory scheme of the Act. Whatever merit there may have been to the "borrowed servant" tort immunity judicially granted to that contractor — albeit, without judicial analysis of the Act or reasoned judicial explanation for the immunity — has disappeared with the 1984 clarification of language as above noted. The specific addition of the concluding sentence of § 905(a), 33 U.S.C. § 905(a)(1984) . . . states that, with regard to the exclusive liability of an " employer" from the compensation remedy provided by the Act, "a contractor shall be deemed the employer of a subcontractor's employees only if the subcontractor fails to secure the payment of compensation."
Id. at 534-35. See also Roach v. M/V Aqua Grace, 857 F.2d 1575, 1579, n. 2 (11th Cir. 1988) ("The 1984 amendment limits the cases in which a contractor may escape full liability to instances in which a subcontractor has affirmatively defaulted on its statutory obligation to obtain insurance, and the contractor has, in accordance with the statutory scheme, acted as a secondary or guarantee insurer.").
When an employee qualifies for, and receives LHWCA compensation, "[t]he issue of whether the state or federal immunity rule applies . . . is a question of federal law." See Grantham v. Avondale Industries, Inc., 964 F.2d 471, 473 (5th Cir. 1992). Similarly, in Canty v. A. Bottacchi, S.A de Navegacion, 849 F. Supp. 1552, 1556 (S.D.Fla. 1994), the court observed that where the issue is "essentially one of determining the extent of coverage under the LHWCA, federal law applies."
Before the 1984 amendments to section 905(a), federal courts applied the nine-factor "borrowed servant" test formulated in Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969), to determine tort immunity in the LHWCA context. See also Brown v. Union Oil Co. of California, 984 F.2d 674, 676 (5th Cir. 1993); Canty, 849 F. Supp. at 1557. The Fifth Circuit has continued to afford tort immunity to a general contractor who has assumed so much control over the employee of the company's subcontractor as to make that person its borrowed employee, but has done so with reservations. See Doucet v. Gulf Oil Corp., 783 F.2d 518, 522 (5th Cir. 1986). Ruiz calls for consideration of the following factors:
(1) Who has control over the employee and the work he is performing, beyond mere suggestion of details or cooperation?
(2) Whose work is being performed?
(3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer?
(4) Did the employee acquiesce in the new work situation?
(5) Did the original employer terminate his relationship with the employee?
(6) Who furnished tools and place for performance?
(7) Was the new employment over a considerable length of time?
(8) Who had the right to discharge the employee?
(9) Who had the obligation to pay the employee?
See Ruiz, 413 F.2d at 313; Brown, 984 F.2d at 676; Canty, 849 F. Supp. at 1557. While the control factor is considered significant, no one factor is determinative of the issue. Brown, 984 F.2d at 676; Canty, 849 F. Supp. at 1557.
In this case, several NFS personnel testified in their respective depositions that Ameri-Force is an NFS subcontractor. It is undisputed that Ameri-Force was Babin's direct employer, and that Ameri-Force secured payment of LHWCA compensation for Babin. If a contractor/sub-contractor relationship existed between NFS and Ameri-Force, the clear, unambiguous language of 33 U.S.C. § 905(a) demonstrates that NFS was not Babin's statutory employer at the time of the accident, and therefore was not entitled to tort immunity.
After the depositions were taken, NFS's attorney filed extensive errata sheets which essentially changed the deposition testimony as it pertained to characterizing Ameri-Force as a subcontractor to NFS. Pursuant to Florida Rule of Civil Procedure 1.330(d)(4), defendant NFS was entitled to file a motion to suppress the depositions or some parts of them, after becoming aware of the alleged defects. However, NFS offered no reasons for the changes. "Once the changes are made, they become a part of the deposition just as if the deponent gave the testimony while being examined, and they can be read at trial just as any other part of the deposition is subject to use at trial." See Motel 6, Inc. v. Dowling, 595 So.2d 260, 262 (Fla. 1st DCA 1992). Under the rationale of Motel 6, it was incumbent upon NFS to file a motion to suppress the parts of the depositions which it considered erroneous. Its failure to do so constitutes a waiver of the complained of defects, insofar as the motion for summary judgment is concerned. Id.
Assuming, without deciding, that the borrowed employee concept remains viable after the 1984 amendment to 33 U.S.C. § 905(a), the manner in which the Ruiz analysis applied by the court in Brown v. Union Oil Co. of California, 984 F.2d 674 (5th Cir. 1993), is helpful in determining the relationships at issue in this case. There is no dispute that Babin was an Ameri-Force employee whose services were furnished to NFS pursuant to an agreement between the two companies. Babin had worked at NFS for approximately two weeks immediately preceding the accident which resulted in his death. Ameri-Force paid Babin's wages, and provided him with employee benefits. As in Brown v. Union Oil, Babin's pay was based on time sheets verified by NFS.
Conflicting evidence was presented in this case on the question of control. NFS personnel gave Babin his work assignments. However, NFS did not train Babin for the work to be performed, and did not control the details of the work. Further, NFS did not furnish the tools and safety equipment Babin used on the job. NFS could have Babin removed from its premises, but it could not terminate his employment with Ameri-Force. On similar facts, the Brown court held the control factor did not clearly support borrowed employee status.
It is clear that Babin was performing NFS's work pursuant to an agreement between Ameri-Force and NFS. It is also clear that NFS does not accord Ameri-Force employees the same treatment as it does its own employees. Among other things, while at NFS, Ameri-Force employees wear badges identifying them as Ameri-Force employees. Pursuant to Brown, this factor does not support Babin's status as a borrowed employee.
The record reflects that Babin acquiesced in the job assignment with awareness of the work conditions at NFS. Nevertheless, the original employer, Ameri-Force, did not terminate its relationship with Babin. Ameri-Force safety representatives were at NFS on a regular basis, to monitor the safety and well-being of its employees. An Ameri-Force leaderman was coming on duty to supervise Babin's work crew at the time of the accident resulting in Babin's death. The record indicates that NFS furnished the place for performance of the work, but a first-class welder such as Babin was expected to have his own tools and safety equipment. Under Brown, factor six is neutral, in that it neither supports nor negates a finding of borrowed employee status. Similarly, the two-week period Babin worked at NFS before the accident would be deemed neutral under the Brown analysis. 984 F.2d at 679. Accord Canty, 849 F. Supp. at 1558 (employments of a short duration require a finding of neutrality as to the factor concerning length of employment with borrowing employer).
Only Ameri-Force had the right to discharge Babin, but NFS could terminate his work relationship with NFS. Ameri-Force had the obligation to pay Babin, but his pay was based on time sheets verified by NFS. Pursuant to Brown, these two factors support borrowed employee status. 984 F.2d at 679. See also Alexander v. Chevron, U.S.A., 806 F.2d 526, 528 (5th Cir. 1986).
We conclude a majority of the Ruiz factors weigh against a determination that Babin was NFS's borrowed employee at the time of the accident. Further, NFS's arguments based on admiralty and maritime jurisdiction are not persuasive as to the immunity issue, especially when considered against the unambiguous language of the applicable federal statutes defining "employee," and the extent of LHWCA coverage. We are also mindful that the cases cited by NFS in support of its position pre-date the 1984 amendments to the LHWCA.
Although the immunity issue in this case is a matter of federal law, it appears the result would be the same if Florida law were deemed applicable. It is the duty to provide workers' compensation benefits which entitles an employer to workers' compensation immunity pursuant to section 440.11. See Ramos v. Univision Holdings, Inc., 655 So.2d 89, 90 (Fla. 1995). Accord Sagarino v. Marriott Corp., 644 So.2d 162, 165 (Fla. 4th DCA 1994), quoting Hogan v. Deerfield 21 Corp., 605 So.2d 979, 981 (Fla. 4th DCA 1992) ("It is the liability to secure compensation which gives the employer immunity from suit as a third party tortfeasor."). See also Fried v. United States, 579 F. Supp. 1212, 1217 (N.D.Ill. 1983) (General contractor who requires that its independent contractor or subcontractor be insured, and pays the premiums, should be granted immunity).
Nothing in this record would support a determination that NFS had a duty to provide workers compensation benefits for Ameri-Force employees, or that it paid the premiums for the coverage furnished by Ameri-Force. The cases cited in the order, and relied upon by NFS in its answer brief, are inapposite. In those cases, state workers' compensation benefits were made available concurrently with LHWCA benefits. Such is not the case here. Under the express terms of section 440.09(2), when LHWCA benefits are available to an injured worker, Florida workers' compensation benefits are not available. LHWCA benefits constitute the exclusive remedy, and section 440.11 is preempted by the federal immunity provision.
In summary, the trial court erred, as a matter of law, in determining that the federal LHWCA and Florida Workers' Compensation Law have concurrent jurisdiction in the circumstances here presented. The trial court also erred in determining that Babin chose to receive LHWCA benefits, in determining that Babin was the borrowed servant of NFS, and in ruling that NFS is immune from appellant's tort action. In addition, important factual issues remain to be resolved, including the nature of the work Babin was engaged in at the time of the accident, the circumstances of the accident which resulted in Babin's death, and the nature of the agreement between Ameri-Force and NFS.
Accordingly, the grant of summary final judgment in favor of NFS is reversed, and this cause is remanded for further proceedings.
BOOTH and VAN NORTWICK, J.J., concur.