As a preliminary matter, the employee argues that the defense of workers' compensation immunity can never be raised by motion to dismiss but can only be raised by motion for summary judgment. For this proposition the employee relies on Preston v. Grant Advertising, Inc., 166 So.2d 219 (Fla. 3d DCA 1964), and Walker v. I.T.D. Industries, Inc., 437 So.2d 230 (Fla. 2d DCA 1983). Establishment of workers' compensation immunity usually requires the employer to bring forth facts from outside the four corners of the complaint, which necessarily requires a motion for summary judgment.
Where a notice of appeal specifies two judgments, one appealable, and one not, it has been held by the Third District that this does not affect the validity of the notice: The specification of the non-appealable order is held to be surplusage and is disregarded. Under a liberal construction of the appeal statutes, this would seem to be the only tenable result. Preston v. Grant Advertising, Inc. (Fla. App. 3rd District 1964) 166 So.2d 219. Even if the two judgments specified in the notice of appeal were both appealable orders as the District Court assumed, the court would have jurisdiction under the notice filed.
In this situation, the exclusivity provision of 440.11 is an affirmative defense and cannot be raised by a motion to dismiss. See Hall v. Universal Dry Wall, Inc., 358 So.2d 1170 (Fla. 3d DCA 1978); Temples v. Florida Industrial Construction Co., 310 So.2d 326 (Fla. 2d DCA 1975); Preston v. Grant Advertising, Inc., 166 So.2d 219 (Fla. 3d DCA 1964); Southeastern Title Insurance Co. v. Curtis, 155 So.2d 855 (Fla. 3d DCA 1963). I.T.D. contends that the allegation in the complaint that Delores was acting within the scope of her employment is sufficient to bring her under the Act.
This interlocutory appeal followed. We reverse on the authority of Preston v. Grant Advertising, Inc., 166 So.2d 219, 222 (Fla. 3d DCA 1964) where we stated: "The allegation of the defendant as to the Workmen's Compensation Law is a matter of defense and not properly the subject of a motion to dismiss.