Opinion
Case No: 8:21-cv-1791-MSS-CPT
2023-03-22
Ausencio FERIA, Plaintiff, v. US SOLAR SQUARED, LLC and L & V Landscaping and Tree Service, LLC, Defendants.
Alejandro Franklin Garcia, Ramhofer Garcia, PLLC, Coral Gables, FL, Raymond R. Dieppa, Florida Legal, North Miami, FL, for Plaintiff. Andrew S. Bolin, Bolin Law Group, Tampa, FL, for Defendant L & V Landscaping and Tree Service, LLC.
Alejandro Franklin Garcia, Ramhofer Garcia, PLLC, Coral Gables, FL, Raymond R. Dieppa, Florida Legal, North Miami, FL, for Plaintiff. Andrew S. Bolin, Bolin Law Group, Tampa, FL, for Defendant L & V Landscaping and Tree Service, LLC. ORDER MARY S. SCRIVEN, UNITED STATES DISTRICT JUDGE
THIS CAUSE comes before the Court for consideration of Plaintiff's Motion for Partial Summary Judgment on Defendants' Affirmative Defenses, (Dkt. 59), Defendant, US Solar Squared, LLC's Response to Plaintiff's Motion for Partial Summary Judgment, (Dkt. 70), Defendant L&V Landscaping and Tree Service, LLC's Amended Notice of Joinder, (Dkt. 72), Plaintiff's Reply to US Solar Squared, LLCs response, (Dkt. 73), and Plaintiff's Reply to L&V Landscaping and Tree Service, LLC's response. (Dkt. 74) Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court GRANTS IN PART AND DENIES AS MOOT IN PART Plaintiff's Motion for Summary Judgment.
In lieu of responding to Plaintiff's Motion, Defendant L&V Landscaping and Tree Service, LLC filed a notice advising that it joins in Defendant US Solar Squared, LLC's Response and adopts the arguments made therein "with respect to the Affirmative Defenses regarding comparative negligence and assumption of risk." (Dkt. 72)
I. BACKGROUND
On June 23, 2021, Plaintiff Ausencio Feria ("Plaintiff") initiated this action against Defendants US Solar Squared, LLC ("US Solar") and L&V Landscaping and Tree Service, LLC ("L&V") (collectively, "Defendants"). (Dkt. 1) In the operative Second Amended Complaint (hereafter, "Complaint"), Plaintiff brings three counts of negligence against Defendant US Solar, and one count of negligence against Defendant L&V. (Dkt. 24) Plaintiff alleges that he was severely injured when he fell from an elevation of over 20 feet while performing tree-trimming services on behalf of and at the direction of Defendants. (Id.)
Plaintiff also sought relief on behalf of his minor children pursuant to Florida Statutes § 768.0415; however, on December 8, 2022, the Court granted Plaintiff's Motion to Drop Nondiverse Parties Pursuant to Rule 21, and dismissed the claims brought on behalf of the minor children. (Dkt. 64) Thus, only Plaintiff's claims remain.
Defendants answered the Complaint and raised numerous affirmative defenses. (Dkts. 26, 32) Plaintiff seeks partial summary judgment as to the following affirmative defenses raised by US Solar in its answer: (1) first affirmative defense - comparative negligence; (2) fourth affirmative defense - third-party comparative negligence; (3) seventh affirmative defense - third party comparative negligence; and (4) fourteenth affirmative defense - workers' compensation immunity. (Dkt. 59) US Solar has withdrawn its fourteenth affirmative defense, (Dkts. 66, 67), so the Motion is DENIED AS MOOT as to this defense. Plaintiff also seeks partial summary judgment as to the following affirmative defenses raised by L&V in its answer: (1) second affirmative defense - third-party comparative negligence; (2) third affirmative defense - comparative negligence; and (3) seventh affirmative defense - assumption of risk. (Id.)
The following facts are undisputed in this record for purposes of resolving Plaintiff's Motion. US Solar is a Florida LLC that is in the business of selling and installing solar panel systems. (Dkt. 59 at ¶ 6; Dkt. 70 at ¶ 8) In 2020, US Solar had 30 employees. (Dkt. 59 at ¶ 6; Dkt. 70 at ¶ 8) Amber and Jared Joyner are the owners of a residential property located at 42 Blue Jordan Road, Frost Proof, FL 33843 (the "Joyner property"). (Dkt. 59 at ¶ 7; Dkt. 70 at ¶ 8) In 2019, the Joyners contacted US Solar to obtain a solar panel system for their home. (Dkt. 59 at ¶ 8; Dkt. 70 at ¶ 9) As part of the sales process, US Solar inspected the Joyner property and determined that several trees on the property needed to be removed and/or trimmed to maximize the production of the proposed solar system. (Dkt. 59 at ¶ 8; Dkt. 70 at ¶ 9) From December 2020 to December 2021, US Solar hired tree trimming contractors to provide tree trimming services to US Solar customers between 50 to 60 times. (Dkt. 59 at ¶ 8; Dkt. 70 at ¶ 9) US Solar indicated in its internal system that tree trimming was required at the Joyner property and represented to the Joyners that the cost of tree trimming and removal would be included in the contract. (Dkt. 59 at ¶ 9; Dkt. 70 at ¶ 10; Dkt. 59-2 at 23:18 - 21; Dkt. 59-4 at 11:5 - 11) Though US Solar now disputes that tree trimming and removal services were in fact included in the Joyners' contract, it does not provide any evidence to dispute that this representation was made to the Joyners at the time of contracting. (Dkt. 70 at ¶ 10)
On November 13, 2019, US Solar and the Joyners executed a written contract for the installation and warranty of a roof-mounted photovoltaic solar panel system (the "System") at the Joyner property. (Dkt. 59 at ¶ 10; Dkt. 70 at ¶ 8) The contract expressly warranted the System's operation for one year following its installation:
WARRANTY: Seller agrees, on condition that the full contract price has been paid on the installation of the System, to warrant the operation of the System for one year following its installation. If, during this one year period, the System or any of its components should fail to operate in accordance with the manufacturer's specifications, Seller agrees to replace or repair the System at its sole
cost and expense, including parts, supplies and labor.(Dkt. 59 at ¶ 11; Dkt. 70 at ¶ 8) US Solar's company website also indicates that it guarantees the performance of their solar systems. (Dkt. 59 at ¶ 11; Dkt. 70 at ¶ 8)
Seann Gates, the managing member of US Solar, was the qualifying agent for US Solar who pulled all permits for the work performed. (Dkt. 59 at ¶ 13; Dkt. 70 at ¶ 8) In December 2019, US Solar hired and paid a landscaper $3,000.00 to remove trees at the Joyner property. (Dkt. 59 at ¶ 14; Dkt. 70 at ¶ 12) Gates testified that US Solar did so "[t]o maximize sun exposure . . . to the solar panels." (Dkt. 59-1 at 30: 5 - 17) Gates further testified that US Solar made the decision to remove the trees prior to the installation of the solar panels because "[w]e thought by cutting those trees we'd maximize the sun exposure on solar panels before we install the panels." (Id. at 30:24 - 31:8) Gates testified that US Solar decides which trees need to be trimmed or removed. (Id. at 63:2 - 4) To do so, US Solar uses a helioscope to give an estimate of the maximum sun exposure to the solar panel. (Id. at 68:2 - 20) If any trees are obstructing the sun exposure, US Solar could decide to have them removed "as goodwill for the customer and to maximize the system to [US Solar's] estimate." (Id. at 68:16 - 24)
In the case of the Joyner property, Gates testified that prior to installation of the System, a sales representative conducted a helioscope assessment to assess the maximum kilowatt hours the System could generate. (Id. at 69:20 - 70:1) This estimate is shown to the homeowners prior to execution of the contract to demonstrate "an estimate of what a solar system can produce as far as energy goes." (Id. at 70:15 - 71:2) Then, the sales representative communicated to US Solar that "to get maximum sun exposure and to come close to the estimate . . . tree trimming would be needed." (Id. at 70:2 - 8) Mrs. Joyner testified that the US Solar sales representative promised that certain trees on her property would be cut and topped as part of the installation of the solar panels to optimize sunshine on her roof:
Q. So, what was it that [US Solar was] planning to do in terms of the installation and construction of the solar panels?(Dkt. 59-2 at 14:5 - 20)
A. . . . [W]e were going to get the solar panels installed, but it was promised that we would have the trees cut and topped and then - so that the panels could work to their optimal ability, to get as much sunshine as possible.
Q. When you say it was promised that the trees would be topped off, who was it that made that promise?
A. The salespeople for US Solar.
After conducting the initial tree trimming, US Solar subcontracted with Guardian Solar for the installation of the System, which was installed on or about March 16, 2020. (Dkt. 59 at ¶ 15; Dkt. 70 at ¶ 8) Almost immediately after installation, Mrs. Joyner complained to US Solar that the System was underperforming. (Dkt. 59 at ¶ 16; Dkt. 70 at ¶ 13; Dkt. 59-2 at 35:1 - 24) In September of 2020, US Solar opened a service ticket regarding Mrs. Joyner's complaints and sent out employees on three occasions to assess the System's performance issues. (Dkt. 59 at ¶ 17; Dkt. 70 at ¶ 8)
In October of 2020, Mrs. Joyner spoke with a US Solar customer service representative named Siara Grant, who advised her that US Solar would be issuing a reimbursement check covering a portion of the Joyners' solar bills due to the System "not producing accordingly." (Dkt. 59-8 at 10) She also advised that US Solar would be performing additional tree trimming at the Joyner property "so that we can properly take care of this for you and ensure your system can be up and running as promised." (Dkt. 59-8 at 3) She advised Mrs. Joyner that US Solar was "waiting on a date from our tree trimmers so that I can inform you when we will be trimming the trees." (Id. (emphasis added)) She stated that trimming the additional trees "will allow your system to produce as it should." (Id.) Grant further stated in communications with Mrs. Joyner that she could see in US Solar's system that "tree trimming was marked and selected in the system from the beginning." (Id. at 9)
In December 2020, US Solar contacted L&V to perform tree trimming services at the Joyner property. (Dkt. 59 at ¶ 20; Dkt. 70 at ¶ 8) L&V is a Florida LLC that performs landscaping and tree trimming services. (Dkt. 59 at ¶ 21; Dkt. 70 at ¶ 8) In 2020, L&V had 4 employees, including Ana Leily Rodriguez, Vicente Gallego, Saul Ortega, and Ausencio Feria. (Dkt. 59 at ¶ 21; Dkt. 70 at ¶ 8) A contract for tree trimming was memorialized between US Solar and L&V prior to the work being performed at the Joyner property. (Dkt. 59 at ¶ 22; Dkt. 70 at ¶ 14) US Solar sent L&V to trim trees on the Joyner property on December 11 and December 14, 2020. (Dkt. 59 at ¶ 23; Dkt. 70 at ¶ 8) Additional tree trimming was required after December 11, 2020 because US Solar determined that certain branches needed to be trimmed lower. (Dkt. 59-7 at 17) When explaining why additional tree trimming was needed, Grant advised the Joyners that "[the tree-trimmers] are not supposed to ask you [how to trim the trees] . . . they're supposed to do it exactly how we tell them in the pictures." (Id. at 16 (emphasis added)) US Solar also required L&V to obtain a signed form from the Joyners indicating that the tree trimming was completed successfully to their satisfaction. (Dkt. 59 at ¶ 25; Dkt. 70 at ¶ 14) US Solar paid L&V directly for the tree trimming services performed at the Joyner property on December 11th and 14th of 2020. (Dkt. 59 at ¶ 24; Dkt. 70 at ¶ 8)
Plaintiff Feria was hired by L&V in December 2020 to perform the tree trimming services at the Joyner property under the agreement between L&V and US Solar. (Dkt. 59 at ¶ 26; Dkt. 70 at ¶ 8) While conducting these services during the course and scope of his employment with L&V on December 14, 2020, Plaintiff fell from a tree and was paralyzed from the waist down. (Dkt. 59 at ¶¶ 27, 28; Dkt. 70 at ¶ 8) Plaintiff petitioned for workers' compensation benefits before the Judge of Compensation Claims naming L&V and US Solar as the employers liable for securing workers' compensation coverage for his December 14, 2020, accident. (Dkt. 59 at ¶ 29; Dkt. 70 at ¶ 8) Both L&V and US Solar failed to carry workers' compensation coverage for Plaintiff's resulting injuries. (Dkt. 59 at ¶ 30; Dkt. 70 at ¶ 8) US Solar and L&V have never paid workers' compensation benefits to Plaintiff. (Dkt. 59 at ¶ 32; Dkt. 70 at ¶ 8)
Accordingly, Plaintiff has filed the instant lawsuit against L&V and US Solar seeking damages.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the movant can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fennell v. Gilstrap, 559 F.3d 1212, 1216 (11th Cir. 2009) (citing Welding Servs., Inc. v. Forman, 509 F.3d 1351, 1356 (11th Cir. 2007)). Which facts are material depends on the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Evidence is reviewed in the light most favorable to the non-moving party. Fennell, 559 F.3d at 1216 (citing Welding Servs., Inc., 509 F.3d at 1356). A moving party discharges its burden on a motion for summary judgment by showing or pointing out to the Court that there is an absence of evidence to support the non-moving party's case. Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001) (citation omitted).
When a moving party has discharged its burden, the non-moving party must then designate specific facts (by its own affidavits, depositions, answers to interrogatories, or admissions on file) that demonstrate there is a genuine issue for trial. Porter v. Ray, 461 F.3d 1315, 1320-1321 (11th Cir. 2006) (citation omitted). The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) ("conclusory allegations without specific supporting facts have no probative value."). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact . . . the court may grant summary judgment if the motion and supporting materials . . . show that the movant is entitled to it." Fed. R. Civ. P. 56(e).
III. DISCUSSION
Plaintiff seeks summary judgment on certain of Defendants' affirmative defenses, contending that L&V and US Solar are barred from asserting negligence of a fellow employee, assumption of risk, or comparative negligence as defenses because Defendants failed to procure workers' compensation coverage for Plaintiff as required by Florida law. (Dkt. 59) Defendant US Solar argues that the Motion should be denied because there are material facts in dispute concerning whether US Solar was Plaintiff's "statutory employer, responsible for obtaining workers' compensation coverage for Plaintiff." (Dkt. 70) More specifically, US Solar disputes that it had a contractual obligation to provide tree-trimming services to the Joyners, which obligation it sublet to L&V, Plaintiff's employer in fact. (Id.)
The Florida Workers' Compensation Act (the "FWCA") requires employers conducting work in the State for Florida with 4 or more employees, or employers operating in the construction industry with 1 or more employees, to secure workers' compensation coverage for their employees. See Fla. Stat. §§ 440.02(17)(a) and 440.10(1)(a). The FWCA extends the definition of employer to any contractor who sublets a contractual obligation it has under an agreement with a third party. Fla. Stat. § 440.10(1)(b). Specifically, section 440.10(1)(b) provides:
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.Id. These contractors are commonly referred to as "statutory employers." See Bal Harbour Tower Condo. Ass'n, Inc. v. Bellorin, 351 So. 3d 96, 99 (Fla. 3d DCA 2022). "The obvious legislative intent is to ensure that a person performing a contractor's work, even an employee of a subcontractor, shall be entitled to workers' compensation protection with the primary employer if the subcontractor fails to provide such coverage." Miami Herald Publ'g v. Hatch, 617 So. 2d 380, 384-383 (Fla. 1st DCA 1993). "[B]ecause contract work must be sublet to form the basis for statutory employer immunity under Section 440.10(1)(b), the statute requires that the contractor must sublet an obligation that is a part of a contract, express or implied in fact." Rabon v. Inn of Lake City, Inc., 693 So. 2d 1126, 1130 (Fla. 1st DCA 1997) (citing Woods v. Carpet Restorations, Inc., 611 So. 2d 1303 (Fla. 4th DCA 1992)).
Statutory employers under the FWCA are given both a responsibility and an immunity. Lizarraga v. Am. Airlines, Inc., No. 99-0688-CIV, 2000 WL 35593213, at *2 (S.D. Fla. Sept. 21, 2000). The statutory employer's responsibility is either to require its subcontractors to "provide evidence of workers' compensation insurance or a copy of his or her certificate of election" or to provide the compensation themselves. Id. (citing Fla. Stat. § 440.10(1)(a), (c)). In exchange for performing this obligation, the statute grants immunity to statutory employers for additional liability under the exclusive remedy provision of the Florida workers' compensation statute. Fla. Stat. § 440.11(1).
However, employers—including statutory employers—who fail to secure payment of workers' compensation as required by the FWCA are subject to suit by an injured employee in an action at law and are prohibited from asserting the following defenses: (1) that the employee assumed the risk of his employment; (2) that the injury was caused by a fellow employee's negligence; or (3) the employee's comparative negligence. Fla. Stat. §§ 440.11(1)(a), 440.06.
With respect to Defendant L&V's affirmative defenses, the Court would note that Defendant L&V did not substantively respond to Plaintiff's Motion for Summary Judgment except to state that it was relying on the arguments made in US Solar's response. (Dkt. 72) However, US Solar makes no argument in response to Plaintiff's contentions that L&V was Plaintiff's employer, was required to carry workers' compensation insurance, and that it failed to do so. As such, no genuine dispute of material fact has been raised in the briefing concerning whether L&V is barred from asserting the affirmative defenses of assumption of risk, comparative negligence, or negligence of a fellow employee pursuant to the FWCA. Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) ("In opposing a motion for summary judgment, a party may not rely on his pleadings to avoid judgment against him. There is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment. Rather, the onus is upon the parties to formulate arguments."); Grant v. Miami-Dade Cty., No. 13-22008-CIV, 2014 WL 7928394, at *9 (S.D. Fla. Dec. 11, 2014), aff'd sub nom., 636 F. App'x 462 (11th Cir. 2015) ("Where a [party] fails to respond to an argument in a motion for summary judgment, he waives the argument. Summary judgment [on that issue] is appropriate."). Accordingly, as there is no genuine dispute that L&V was Plaintiff's employer as defined by the FWCA and failed to obtain workers' compensation coverage for Plaintiff, partial summary judgment is due to be GRANTED in favor of Plaintiff and against L&V on L&V's second, third, and seventh affirmative defenses.
US Solar does dispute in its response that it was Plaintiff's statutory employer and is prohibited under the FWCA from asserting its own affirmative defenses due to its failure to obtain coverage for Plaintiff. (Dkt. 70) The question of whether US Solar was Plaintiff's statutory employer turns on the factual issue of whether US Solar was a "contractor," and more specifically, whether it was contractually obligated to trim trees at the Joyner property in December 2020.
The Florida Supreme Court has held that a contractor, subject to the statutory employer doctrine, is one who has a "primary obligation under a contract, which it passes on to another" to perform. Jones v. Fla. Power Corp., 72 So. 2d 285, 289 (Fla. 1954); see also Sotomayor v. Huntington Broward Assocs. L.P., Ltd., 697 So. 2d 1006, 1007 (Fla. 4th DCA 1997). In Miami Herald Publishing v. Hatch, the first district clarified the inquiry to be a "determination as to whether the entity has 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." 617 So.2d at 381. The "primary obligation" is "an obligation under the prime contract between the contractor and a third party." Id. at 383. The contractual obligation need not be pursuant to an express provision contained in a written contract and may be implied. Rabon, 693 So. 2d at 1129.
When a contract is express, the parties have set forth their agreement either verbally or in writing. Rabon, 693 So. 2d at 1131. In a contract implied in fact, the assent of the parties is derived from other circumstances, including their course of dealing or usage of trade or course of performance. Id. "In inferring a contract implied in fact, a court should give to the implied contract 'the effect which the parties, as fair and reasonable men, presumably would have agreed upon if, having in mind the possibility of the situation which has arisen, they had contracted expressly in reference thereto.' " Id. (quoting Bromer v. Florida Power & Light Co., 45 So.2d 658, 660 (Fla. 1949)).
Plaintiff contends that it is undisputed in this record that "US Solar owed an implied contractual obligation to trim trees at the Joyner residence by virtue of its contract for installation and warranty of the Joyner's solar panel system." (Dkt. 73 at 3) Specifically, Plaintiff contends that there is no genuine factual dispute that the cost of the necessary tree trimming was included in the purchase price with US Solar and that tree trimming was performed at the direction of US Solar as part of the initial installation of the solar panel system. (Id.) The only evidence offered by Defendant to rebut Plaintiff's facts is the lack of an express contractual tree-trimming provision in the sales contract and the testimony of its corporate representative, Seann Gates, who denies that tree trimming is required for the solar panels to function correctly and states that tree trimming is performed by US Solar for customer goodwill. (Dkt. 70 at 4 - 7) However, this evidence is insufficient to defeat summary judgment.
Though US Solar only focuses on Gates' stated customer service reasons for conducting tree trimming, Gates specifically testified that tree trimming was performed "as goodwill for the customer and to maximize the system to [US Solar's] estimate." (Dkt. 51-1 at 68:23 - 24 (emphasis added)) It is undisputed in this record that US Solar represented to the Joyners from the beginning of their business relationship that trees on the property needed to be trimmed to maximize the System's solar production to its own estimate. (Dkt. 59-2 at 14:5 - 20; Dkt. 59-1 at 68:16 - 24) Gates admitted that tree trimming was marked in US Solar's internal system as "needed" at the Joyner property, as determined by the US Solar sales representative who sold the System to the Joyners in November 2019, and that this agent represented to the Joyners that the cost of the tree trimming would be included in the contract. (Dkt. 59-1 at 105:2 - 25; 145 at 16 - 146:2; Dkt. 59-2 at 23:18 - 21; Dkt. 59-4 at 11:5 - 11)
Gates also testified that US Solar made the decision to conduct tree trimming on the Joyner property prior to the installation of the System, and US Solar decided which trees and branches need to be removed and to what extent. (Dkt. 59-1 at 63:2 - 4) US Solar admits that its sales representative conducted a helioscope assessment of the maximum kilowatt hours the System could generate at the Joyner property prior to execution of the contract, to demonstrate to the Joyners "an estimate of what a solar system can produce as far as energy goes." (Id. at 69:20 - 71:2) Then, the sales representative communicated to US Solar that "to get maximum sun exposure and to come close to the estimate . . . tree trimming would be needed." (Id. at 70:2 - 8) US Solar arranged and paid for tree trimming to occur at the Joyner property prior to installation of the System. (Dkt. 59 at ¶ 14; Dkt. 70 at ¶ 12)
Gates testified that US Solar does not guarantee production of its solar systems. (Dkt. 59-1 at 51:12 - 13) However, US Solar concedes as an undisputed fact that its company website indicates that it guarantees the performance of their solar systems. (Dkt. 59 at ¶ 11; Dkt. 70 at ¶ 8) Moreover, this guarantee is borne out by the undisputed fact that when Mrs. Joyner complained to US Solar about the System's performance issues, specifically its underproduction, US Solar arranged for and paid to conduct further tree trimming on the Joyner property to rectify the issue. (Dkt. 59 at ¶ 20; Dkt. 70 at ¶ 8) US Solar's customer service representative, Siara Grant, advised Mrs. Joyner that US Solar would be issuing a reimbursement check covering a portion of the Joyners' solar bills due to the System "not producing accordingly." (Dkt. 59-8 at 10) She also advised that US Solar would be performing additional tree trimming at the Joyner's property "so that we can properly take care of this for you and ensure your system can be up and running as promised." (Dkt. 59-8 at 3 (emphasis added)) She stated that trimming the additional trees "will allow your system to produce as it should." (Id. (emphasis added)) She referred to the tree trimmers as "our tree trimmers." (Id. (emphasis added)) When the further tree trimming was not completed to US Solar's satisfaction on December 11, 2020, Grant advised the Joyners that US Solar would be sending the tree-trimmers back and stated that the tree-trimmers are "supposed to [trim the trees] exactly how we tell them in the pictures." (Dkt. 59-7 at 16-17 (emphasis added)) Gates' testimony that no jobs require tree trimming for the solar panels to function correctly does not suffice to dispute the record evidence that tree trimming was required at the Joyner property for optimal performance of the System.
The record establishes that tree trimming was required for the solar panels to function as promised and that US Solar undertook to trim trees as part of its contract to install solar panels for the Joyners and, subsequently, to ensure that the system was functioning optimally. (Dkt. 59-8 at 3; Dkt. 59-1 at 105:2 - 25; 145 at 16 - 146:2) US Solar does not deny that it marked tree trimming at the Joyner property as "needed" in its system prior to execution of the contract, determined which trees needed to be trimmed, and arranged and paid for tree trimming services to occur at the Joyner property as part of the usual course of its business. Whether US Solar did so pursuant to its original, contractual obligation to the Joyners established at the time of sale or whether it did so pursuant to a subsequent contract with Mrs. Joyner to trim trees in exchange for maintaining customer goodwill and in an effort to fulfill its obligations under the initial contract, there is no genuine dispute of material fact that tree trimming was a contractual obligation US Solar owed to the Joyners. The fact that tree trimming was not expressly specified in the sales contract does not alter the Court's determination. Tree trimming was directly related to and integral to the proper installation and functioning of the solar panels.
In fact, the arrangement of tree trimming was not unique to the Joyners' case, as US Solar hired tree-trimming contractors to provide tree-trimming services as part of its solar installation process to its customers between 50 to 60 times between December 2020 and December 2021. (Dkt. 59 at ¶ 8; Dkt. 70 at ¶ 9)
US Solar has presented no evidence that disputes these material facts. It only disputes the legal implication of those facts. However, the Florida Statutes answer the legal question. Section 440.10(1)(b) provides:
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.Id. Florida cases have applied this clear law in similar circumstances. See Broward Cnty. v. Rodrigues, 686 So. 2d 774, 775 (Fla. 4th DCA 1997) (finding a county defendant was a statutory employer pursuant to Section 440.10(1)(b) despite the fact that written contracts with third-party did not expressly mention the specific duty being sublet, because "it is clear that such duty was directly related and necessary to the county's fulfilling its contractual obligation"); Antinarelli v. Ocean Suite Hotel, 642 So. 2d 661, 662 (Fla. 1st DCA 1994) (finding a hotel defendant that included complimentary breakfast at a restaurant in its room rates was the statutory employer of a waitress pursuant to Section 440.10(1)(b); by doing so, the hotel impliedly contracted to provide breakfast to its patrons, which obligation it sublet to the restaurant).
Because the Court finds that there is no genuine dispute of material fact that US Solar was Plaintiff's statutory employer and that it failed to obtain workers' compensation coverage for him as required by the FWCA or to ensure that L&V carried insurance, US Solar is statutorily barred from raising the defenses that Plaintiff's injury was caused by the negligence of a fellow employee, assumption of risk, or Plaintiff's comparative negligence. Fla. Stat. § 440.06 (prohibiting the use of such defenses where an employer fails to secure payment of compensation). Accordingly, Plaintiff's Motion is due to be GRANTED as to US Solar's first, fourth, and seventh affirmative defenses.
IV. CONCLUSION
Upon consideration of the foregoing, it is hereby ORDERED as follows:
1. Plaintiff's Motion for Partial Summary Judgment on Defendants' Affirmative Defenses, (Dkt. 59), is GRANTED IN PART and DENIED AS MOOT IN PART. The Motion is GRANTED as to L&V's second, third, and seventh affirmative defenses and US Solar's first, fourth, and seventh affirmative defenses.
The Motion is DENIED AS MOOT as to US Solar's fourteenth affirmative defense, which has been withdrawn.
DONE and ORDERED in Tampa, Florida, this 22nd day of March 2023.