Opinion
Case No. 8:06-cv-13-T-26MAP.
March 23, 2006
ORDER
Before the Court is Third-Party Defendant's Motion to Dismiss and supporting Memorandum of Law. After careful consideration of the well-pleaded allegations of Plaintiff's complaint and Defendants' third party complaint, the Court is of the opinion that the motion is due to be denied because under the law of the State of Florida a common law action can be brought, as in this case, against an employer of employees working on the same project as the injured plaintiff, notwithstanding the exclusivity of liability provisions of section 440.11, Florida Statutes.See Cook v. Estate of Mills, 374 So. 2d 599, 601 (Fla. Dist. Ct. App. 1979). Moreover, to the extent Plaintiff can be considered an employee of Defendants, the issue of whether the "unrelated works" exception to workers' compensation immunity applies, see Lluch v. American Airlines, Inc., 899 So. 2d 1146, 1148 (Fla. Dist. Ct. App. 2005), cannot be resolved at this early juncture of the proceedings.
The Court recognizes that the holding in Cook to the effect that an employee can sue a co-employee has been abrogated by the 1978 amendment to section 440.11, Florida Statutes. See Florida Dep't of Transportation v. Juliano, 864 So. 2d 11, 14-15 (Fla.Dist.Ct.App. 2003).
Accordingly, it is ordered and adjudged that Third-Party Defendant's Motion to Dismiss (Dkt. 15) is denied. The Third-Party Defendant shall file its answer and defenses within 10 days of this order.