Opinion
Case No. 3D98-267.
Opinion filed September 11, 2002.
An appeal from the Circuit Court for Monroe County, Stephen P. Shea, Judge. Lower Tribunal No. 93-20647.
Vernis Bowling of the Florida Keys, P.A. and Dirk M. Smits, for appellant.
Keyfetz, Asnis Srebnick, P.A. and L. Barry Keyfetz, and Bradley D. Asnis, for appellee.
Before COPE, LEVY, and GREEN, JJ.
Pursuant to the Florida Supreme Court's mandate in Florida Dept. of Transp. v. Juliano, 801 So.2d 101 (Fla. 2001) ("Juliano III"), we must resolve the issues of whether culpable negligence is the proper standard under section 440.11(1), Florida Statutes (1997) and whether the trial court erred in denying the Florida Department of Transportation's ("DOT") motion for summary judgment and/or directed verdict — thereby disallowing DOT's workers' compensation immunity defense. We conclude that under workers' compensation law, DOT cannot be held liable in this case in the absence of evidence on which a jury could have found that DOT was culpably or criminally negligent. Accordingly, we reverse the judgment under review. The facts of this case were set forth in Florida Dept. of Transp. v. Juliano, 744 So.2d 477 (Fla. 3d DCA 1999) ("Juliano II").
We note that this is the third appearance of this case before this court. Initially, DOT took an interlocutory appeal of the denial of its motion for summary judgment which maintained that DOT was immune from suit because the "unrelated works" exception under section 440.11(1), Florida Statutes (1997) was inapplicable where appellee, Angelo Juliano, had failed to identify any specific DOT employee as negligent. Juliano responded that he was not required to identify the negligent fellow employee pursuant to Holmes County School Bd. v. Duffell, 651 So.2d 1176 (Fla. 1995), and even if there was such a requirement, by naming two specific supervisors as negligent co-workers in his response to DOT's summary judgment motion, the appeal was rendered moot. We per curiam affirmed the appeal with a citation to Holmes. See Florida Dept. of Transp. v. Juliano, 664 So.2d 77 (Fla. 3d DCA 1995) ("Juliano I").
Upon remand to the trial court, DOT filed a second motion for summary judgment, this time asserting that an employee could not sue a supervisor under the "unrelated works" exception unless the employee could prove that the supervisor engaged in conduct which amounted to culpable negligence. This motion was denied as a mere relitigation of the first motion for summary judgment. The case proceeded to jury trial and a verdict was entered for Juliano.
DOT appealed the final judgment and argued, among other things, that the trial court erred in denying its second motion for summary judgment. We held that DOT was foreclosed from relitigating the workers' compensation immunity defense based upon the doctrine of res judicata. See Juliano II, supra. The Supreme Court, however, upon review, determined that this court "erred as a matter of law when we relied on the doctrine of res judicata to preclude DOT from raising any aspect of its workers' compensation defense on remand after the first appeal." See Juliano III, 801 So.2d at 108. The court pointed out that:
Neither DOT's first summary judgment motion, the trial court's order denying the summary judgment motion, nor the issues raised or briefed by the parties on the first appeal addressed the appropriate standard of negligence applicable to supervisory employees who are sued under the "unrelated works" exception. The issue regarding the appropriate standard of negligence was not before the Third District when it affirmed the trial court's order denying summary judgment. Therefore, the matter of the appropriate standard of negligence was neither necessarily nor implicitly decided in the first interlocutory appeal.
Id. (citation omitted).
The court therefore quashed Juliano II and remanded with instructions that we address the merits of the issue of whether Juliano was required to plead and prove culpable negligence as opposed to simple negligence against a fellow employee in a supervisory capacity pursuant to section 440.11(1). See Juliano III , 801 So.2d 101, 108 n. 7. It is in response to this mandate that we now conclude that the higher standard of culpable negligence is the applicable standard. Thus, where the record evidence at best established only simple negligence, the trial court erred in failing to grant DOT's second motion for summary judgment and/or a directed verdict on its workers' compensation immunity defense under section 440.11(1).
In 1988, the Florida legislature amended the workers' compensation statute, section 440.11(1). This amendment "provides for heightened immunity to policymaking types of employees by raising the degree of negligence necessary to maintain a civil tort action from gross negligence to culpable negligence when those employees are engaged in managerial or policymaking decisions." See Eller v. Shova, 630 So.2d 537, 541 (Fla. 1993); see also Subileau v. Southern Forming, Inc., 664 So.2d 11, 12 (Fla. 3d DCA 1995) ("The new language [of section 440.11(1)] provides that both employers and those in a managerial capacity are immune from suit for on-the-job injuries sustained by employees, unless the employer or manager's conduct amounts to criminal conduct punishable by more than 60 days imprisonment under the applicable criminal statute."). As such, a supervisor is immune from suit unless it can be shown that the supervisor's negligence was tantamount to culpable negligence. See Emergency One, Inc. v. Keffer, 652 So.2d 1233 (Fla. 1st DCA 1995). Culpable negligence has been defined as conduct including "a gross and flagrant character which evinces a reckless disregard for the safety of others," and constituting "an entire want of care which raises a presumption of indifference to consequence." See Killingsworth v. State, 584 So.2d 647, 648 (Fla. 1st DCA 1991).
As amended, section 440.11(1) provides in relevant part as follows:
The same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed exceeds 60 days imprisonment as set forth in s. 775.082 . . .
In the case at bar, Juliano neither pled nor proved culpable negligence. The evidence adduced at the trial below was that DOT supervisors were aware of the poor condition of the floor and that there were plans for repair or replacement. Though perhaps more could, and should, have been done sooner to remedy the hazardous condition before Juliano was injured, there was simply no evidence to show that the delay in repair was the result of culpable negligence. Thus, DOT was entitled to summary judgment or a directed verdict on its workers' compensation defense. We therefore reverse the judgment under review with directions that judgment be entered in favor of DOT.
Reversed and remanded with directions.