Opinion
No. 69-89.
September 11, 1970. Rehearing Denied October 29, 1970.
Appeal from the Circuit Court, Broward County, Jose A. Gonzalez, Jr., J.
Gerald F. Richman, William S. Frates and Ray H. Pearson, of Frates, Fay, Floyd Pearson, Miami, for appellants.
Paul R. Larkin, Jr., and James E. Tribble, of Blackwell, Walker Gray, Miami, for appellee REW Crane Service, Inc.
Reed A. Bryan, III, of McCune, Hiassen, Crum Ferris, Fort Lauderdale, for appellee Gold Coast Crane Service, Inc.
Plaintiff, individually and as administratrix of her deceased son's estate, appeals entry of final judgment after summary judgments for defendants, REW Crane Service, Inc., and Gold Coast Crane Service, Inc. We reverse.
The complexities of this action as revealed by the record demonstrate that plaintiff should have been afforded an opportunity to amend her complaint.
Where entry of summary judgment for a defendant is proper, nevertheless, if the record establishes that the plaintiff may have a viable claim if properly pleaded then opportunity should be afforded to amend the complaint. Such authorization may even be included in the order granting summary judgment. Hart Properties, Inc. v. Slack, Fla. 1963, 159 So.2d 236; Roberts v. Braynon, Fla. 1956, 90 So.2d 623; Stephens v. Dichtenmueller, Fla. 1968, 216 So.2d 448; Housing Auth. of City of Melbourne v. Richardson, Fla.App. 1967, 196 So.2d 489; Fouts v. Margules, Fla.App. 1957, 98 So.2d 394.
In the instant case, plaintiff is entitled to the benefit of this rule
Accordingly, this cause is reversed and remanded for proceedings consistent herewith.
CROSS, C.J., and McCAIN, J., concur.
OWEN, J., concurs specially, with opinion.
I concur in the decision to reverse the judgments appealed but apparently on a different ground than that expressed by my colleagues. Summary judgments entered in favor of defendants Gold Coast Crane Service, Inc., a Florida corporation, and REW Crane Service, Inc., a Florida Corporation were predicated upon the immunity provisions of the Workmen's Compensation Act, F.S. 1965 Sections 440.10 and 440.11, F.S.A. Although the general contractor by whom plaintiff's decedent was employed had secured workmen's compensation on its employees, the general contractor had not secured workmen's compensation on the employees of Gold Coast Crane Service, Inc. or REW Crane Service, Inc., both of whom were subcontractors. The record as it exists at the present time is silent as to whether these subcontractors had secured workmen's compensation as to their own employees, whose alleged negligence resulted in the death of plaintiff's decedent on a construction job. The exclusive remedy of the Workmen's Compensation Act is an affirmative defense, cf. Hunt v. Ryder Truck Rentals, Inc., Fla. 1968, 216 So.2d 751. Under the doctrine of Holl v. Talcott, Fla. 1966, 191 So.2d 40, appellees have failed at this stage of the case to conclusively demonstrate by undisputed facts that they are entitled to judgment as a matter of law.