by James W. Sherman
There are no sweeter words to fall upon the ears of a wronged civil defendant than “immediately appealable.” One important classification of immediately appealable orders are those denying entitlement to workers’ compensation immunity. Fla. R. App. P. 9.130(a)(3)(C)(v) creates a right to a nonfinal appeal from orders that determine, as a matter of law, the defendant is not entitled to workers’ compensation immunity. While many litigators are aware of the general existence of these provisions, some do not understand the intricacy involved. This article examines the purpose of workers’ compensation immunity and the history of the right to immediate appeal of specific orders. It also explains the difference between appealable and nonappealable orders on workers’ compensation immunity. Finally, it examines some of the common types of orders that have been reviewed under this provision.
Who Is Covered Under the Statute?
Florida’s workers’ compensation scheme was created with the intended purpose of establishing a quick and efficient means of “systematically resolving nearly every workplace injury.”1 The scheme is premised on a “mutual renunciation of common-law rights and defenses by employers and employees alike.”2 Under the quid pro quo arrangement, the employee waives his right to recovery in tort (absent certain exceptions) for the certainty of a quick and definite recovery.3 Thus, an employee living paycheck to paycheck is protected from a catastrophic change in circumstance as the result of an injury, but gives up the opportunity to seek a greater redress in tort. In turn, the employer surrenders the right to contest liability for the protection of immunity from more costly litigation.4 In the process, the act creates a more stable, commercial-friendly environment by making the cost of business easier to predict and insure against.5
F.S. §§440.10 and 440.11 together provide both “vertical” and “horizontal” immunity to employers, contractors, subcontractors, employees, officers, and directors, and several other categories of persons or entities that may operate at a workplace or on a jobsite.6 However, over the last century, the classes of parties entitled to such immunity have expanded and contracted several times. The first major expansion into an encompassing scheme dates back to 1937, when the legislature amended the existing statute to establish both vertical and horizontal immunity to all subcontractors and employees on the jobsite, grounded in the philosophy that “two men working shoulder to shoulder” should be entitled to the same immunity.7 In 1974, the statute was again amended, this time to eliminate immunity for anyone outside the vertical chain of contract.8 Most recently, in 2003, the legislature, in a major overhaul of the governing chapter, reinstituted horizontal immunity to extend coverage, and immunity, to nearly every workplace injury.9
However, there remain some categories that fall outside the protections of the statutory umbrella, exposed to the hard rains of direct liability. For instance, the owner of a property who simply hires a contractor to perform work may not seek protection from workplace injuries to the employees of its contractors or subcontractors.10 Instead, the owner is typically insulated by Florida’s longstanding independent contractor rule, which holds that one who hires an independent contractor is not liable for injuries resulting from the work on his premises.11 There are, of course, exceptions to the independent contractor doctrine, but they are not relevant to this discussion, as they are not reviewable under Rule 9.130. Likewise, a materialman — essentially a vendor — who merely delivers materials to the work site (such as concrete or lumber) is not protected either.12 Similarly, equipment rental companies, though not strictly materialmen, are excluded from immunity as well.13 This exposure leaves such companies with a significant amount of liability considering the dangers involved.
History of Rule 9.130
Fla. R. App. P. 9.130 establishes the right to immediate appeal of a very limited class of orders. The number of orders is purposely restrictive to ensure judicial economy and avoid piecemeal review.14 In fact, it is so restrictive that a court reviewing an interlocutory order cannot consider other erroneous rulings at that time.15 Though the scope of appealable immunity orders is now well settled, it hasn’t always been so.
Prior to the adoption of Rule 9.130, nonfinal appeals were provided for through extraordinary writs and Rule 4.2(a), which permitted appeals from interlocutory orders “as formerly cognizable in equity,” as well as those relating to venue or in personam jurisdiction, orders granting partial summary judgments on liability, orders entered after final judgment other than those relating to new trial, rehearing or reconsideration, and orders on motions to vacate defaults or dismissals for lack of prosecution.16
In 1977, the Florida Supreme Court established the modern Florida Rules of Appellate Procedure we all know and love, including Rule 9.130. The new rule organized the previous categories of appealable nonfinal orders into tidy subparagraphs. More importantly, however, the rule eliminated the amorphous category of orders “formerly cognizable in equity.” The commentary to the amended rule reflects the Advisory Committee’s intention to provide immediate relief to the “most urgent interlocutory orders,” which the committee anticipated would collaterally restrict certiorari relief to “very few cases.”17 Most practitioners can attest from experience that this has shown true, as few certiorari petitions are granted beyond those concerning “cat-out-of-the-bag” discovery disputes.18
The original iteration of Rule 9.130 lacked an avenue for early appellate relief from any sort of immunity-related orders. As a result, defendants denied such entitlement were left with little option but to litigate the case through trial and seek reversal by way of final appeal. Others were able to obtain review through the extraordinary writ of prohibition.19 This method hung around for a surprisingly long time until 1992, when the Supreme Court resolved the issue in Mandico v. Taos Const. Inc., 605 So. 2d 850 (Fla. 1992).
In Mandico, a construction company and its employee, having been denied summary judgment on their defense of workers’ compensation immunity, sought a writ of certiorari in the district court, arguing the trial court lacked jurisdiction to try the case because they had established entitlement to workers’ compensation immunity.20 The Fourth District agreed and, on its own accord, converted the relief requested to a more appropriate writ of prohibition, to prevent the court from acting in excess of its jurisdiction. The Fourth District then certified, as a matter of great public importance, the question of whether “orders, denying immunity from civil suit under the workers’ compensation statute, [may] be reviewed by [w]rit of [p]rohibition.”21
The Florida Supreme Court accepted jurisdiction and answered the question in the negative, holding prohibition was not a proper vehicle to obtain review of such orders since the trial court had jurisdiction to make a determination on an affirmative defense of immunity.22 The Supreme Court, also recognizing the need for review of these orders, pronounced the creation of a new class of immediately appealable nonfinal orders that find “a party is not entitled to workers’ compensation immunity as a matter of law.”23 Rule 9.130 was amended and such orders became appealable.
Appealable vs. Nonappealable Orders on Immunity
A question of construction arose soon after the workers’ compensation amendment was added to Rule 9.130. In Breakers v. Gloger, 646 So. 2d 237 (Fla. 4th DCA 1994), the Fourth District found placement of the phrase “as a matter of law” at the end of the sentence meant that this language should be interpreted expansively.24 Under this interpretation, any order denying summary judgment on workers’ compensation immunity was immediately appealable.
The Fourth District found support for this interpretation in the earlier case of Ross v. Baker, 632 So. 2d 224, 225 (Fla. 2d DCA 1994), in which the Second District, addressing the somewhat paradoxical nature of the rule, declared:
“It seems unusual to treat an order denying a motion as an order ‘determining’ an issue. At least in some instances, such orders may merely establish that the trial court currently views the issue of immunity to involve unresolved factual questions as well as legal questions. Nevertheless, we consider that the Supreme Court intends for this court to review this type of order.”
The Fifth District, for its own part, appeared to struggle internally on the correct application of the rule, giving a wide breadth to jurisdiction in Lake Mary v. Franklin, 668 So. 2d 712 (Fla. 5th DCA 1996), and Integrity Homes of Cen. Fla., Inc. v. Goldy, 672 So. 2d 839 (Fla. 5th DCA 1996), which were decided on the same day.
Just two years after its opinion in Ross, the Second District gracefully recalibrated its position to a restrictive view of jurisdiction, and held Rule 9.130 limits review to orders that “turn on an issue of law.”25 The court observed that orders denying motions for summary judgment based on “unresolved factual questions” are not ripe, and could later be changed by the trial court, making appellate consideration premature.26 The court then certified conflict with Gloger and Lake Mary.
The Florida Supreme Court, recognizing the inherent ambiguity of the rule as phrased, accepted jurisdiction, and clarified that orders denying summary judgment on workers’ compensation immunity are not appealable “unless the trial court specifically states that, as a matter of law, such a defense is not available to a party.”27 The Supreme Court also noted that under the recent amendments to the Rules of Appellate Procedure, the court had adopted a reworked Rule 9.130, which moved the phrase “as a matter of law” toward the beginning of the clause to clarify that jurisdiction was only available to orders determining “that, as a matter of law, a party is not entitled to workers’ compensation immunity.”28 The Supreme Court subsequently emphasized that the legal nature of the ruling must be clear on the face of the appealed order.29
There remains a class of orders that have not been subject to any discussion but appear to be appealable under Rule 9.130 as well: orders granting a plaintiff’s motion for summary judgment on an affirmative defense of workers’ compensation immunity. At least three courts have entertained review of cases under such orders.30 It does not appear any court has ever had any reason to doubt its jurisdiction to resolve such appeals. Logically, there would be a glaring inconsistency in precluding review of these orders while allowing orders denying summary judgment when both orders effectively deprive the defendant of jury resolution on workers’ compensation immunity. It seems likely, therefore, the rule encompasses both kinds.
Types of Appealable Orders
There are a number of situations in which a court might, as a matter of law, deny entitlement to workers’ compensation immunity. Obviously, if an employee is suing his direct employer, entitlement is typically undeniable. However, both the statutes and common law have expanded the scope of the employer/employee relationship, giving rise to several less apparent scenarios. This section reviews a few.
For instance, another contractor or subcontractor on a jobsite, who did not directly employ the plaintiff, may still be entitled to workers’ compensation immunity.31 For those companies vertically aligned with the plaintiff’s employer, the test to be applied is governed by F.S. §440.11(1)(b). However, where the company is not within the same chain of contract, but operates on the same jobsite, its immunity is governed by §440.10(1)(e). Whether under Rule 9.130 or as a final appeal from an order granting summary judgment, such orders have been decided by appellate courts many times.32
Another common scenario involves estoppel. On some occasions, an employer’s actions in the workers’ compensation claim can affect the availability of immunity in a tort action. A common scenario involves a denial that the plaintiff was injured in the course and scope of employment, thus, barring recovery of benefits. The plaintiff is then free to file suit against the employer in tort, without having to overcome the heightened threshold of immunity. On occasion, the trial court’s interpretation of the employer’s compensation filing is erroneous, and the order denying summary judgment on workers’ compensation immunity may be brought before the district court.33 At other times, it may not have been the employer him or herself, but a related entity who denied compensability.34 If the trial court denies immunity, the defendant, again, may successfully challenge the denial of immunity.35
Employers are also immune from suit by “borrowed servants.” A borrowed servant is generally an employee assigned to perform work under the guidance of another entity, who is aware of the assignment and has consented.36 Caselaw is clear that, in most instances, the question of whether someone is a borrowed servant is a question of fact, best suited for jury resolution.37 As a result, most orders denying immunity based on such defenses will not be appealable. However, there may be times when a court finds, as a matter of law, that the employee was not a borrowed servant, and erroneously removes the issue from jury consideration, giving rise to an immediate appeal. Relatedly, help supply services companies (often temp agencies) are protected under §440.11(2), and so are the employers who utilize them. Thus, a determination by a trial court that certain employees were not employed by such a service, thereby precluding an immunity defense, could also be promptly appealed.
One final unconventional claim for workers’ compensation immunity arises when a party obligates itself to provide certain services to a third party, and then delegates those services to the plaintiff’s employer.38 In such situations, a nonconstruction entity can convert itself into a “contractor” under the statute even though it may not be the workers’ direct employer. This arrangement was recently addressed by the First District in Mathis v. Sacred Heart Health Sys., Inc., 187 So. 3d 951 (Fla. 1st DCA 2016). There, Sacred Heart hospital hired a janitorial company to provide cleaning services. The plaintiff, one of the janitors, was injured when he slipped and fell, and brought suit against Sacred Heart. Sacred Heart asserted a workers’ compensation immunity defense, theorizing it was a contractor and the janitorial company, its subcontractor. Under this theory, it owed a duty to its patients to provide a clean facility, which it delegated to the plaintiff’s employer. The trial court denied workers’ compensation immunity, and Sacred Heart was able to challenge the order using Rule 9.130.
These examples certainly do not encompass all the possible scenarios, but they do provide a glimpse into the less obvious circumstances in which a defendant may consider asserting a workers’ compensation immunity defense with the hope of taking an immediate appeal.
An understanding of the right to immediate appeal under Rule 9.130(a)(3)(C)(v) can be a useful tool in workers’ compensation immunity cases. Early determination of such cases can save companies significant amounts that would be expended in long, costly litigation. By enabling an early resolution of the case, both litigants and courts further the purpose of the statute.39 Review of nonfinal workers’ compensation immunity orders, therefore, serve an important function in the process. However, it is important to understand that not all orders deciding the immunity issue against an employer are immediately appealable. To ensure appellate review is available, a defendant should be careful to request that any order denying immunity state on its face that it is a determination as a matter of law. In doing so, the practitioner will guarantee the client has the opportunity to challenge the ruling without the necessity of litigating the case to a final appeal.
1 Aravena v. Miami-Dade Cnty., 928 So. 2d 1163, 1166 (Fla. 2006), quoting Taylor v. Sch. Bd. of Brevard Cnty., 888 So. 2d 1, 4 (Fla. 2004).
2 Amorin v. Gordon, 996 So. 2d 913, 917 (Fla. 4th DCA 2008).
4 Id. at 918.
6 The terms “vertical” and “horizontal” reference the relation of the parties within the various chains of contract.
7 See Younger v. Giller Contracting Co., 196 So. 690, 693 (Fla. 1940); Ramcharitar v. Derosins, 35 So. 3d 94, 96 (Fla. 3d DCA 1996).
9 Id. at 97.
10 See Ramos v. Univision Hldgs., 55 So. 2d 89 (Fla. 1995).
11 See Philips v. Repub. Fin. Corp, 157 So. 3d 320 (Fla. 5th DCA 2015) (The author represented Republic Financial Co. in this case.); Worthington Comty., Inc. v. Mejia, 28 So. 3d 79 (Fla. 2d DCA 2009).
12 See Goldstein v. Acme Crane Corp., 103 So. 2d 202 (Fla. 1958); Adams Homes of Northwest Fla., Inc. v. Cranfill, 7 So. 3d 611 (Fla. 5th DCA 2009).
13 See Ciceron v. Sunbelt Rentals, Inc., 163 So. 3d 609 (Fla. 4th DCA 2015) (The author represented Sunbelt Rentals in this case.).
14 See Kogan v. Mildenberger, 127 So. 3d 831, 832 (Fla. 3d DCA 2013).
15 See RD & G Leasing v. Stebnicki, 626 So. 2d 1002 (Fla. 3d DCA 1993) (“Orders which are not enumerated in 9.130 must await review at the end of the case, unless they meet the standard for certiorari or another extraordinary writ.”); Sch. Bd. of Broward Cty. v. City of Coral Springs, 187 So. 3d 287, 289 n. 1 (Fla. 4th DCA 2016) (“[A]ppellate courts are without jurisdiction to review [issues not listed in Rule 9.130] simply because they are included in the same order along with a ruling which is appealable.”).
16 See Fla. R. App. P. 4.2(a) (1970).
17 See In Re Proposed Fla. App. Rules, 351 So. 2d 981, 997 (Fla. 1977).
18 See Rousso v. Hannon, 146 So. 3d 66, 69 (Fla. 3d DCA 2014) (“A writ of certiorari is an extraordinary type of relief that is granted in very limited circumstances.”); see also Tyco Fire Prod., LP. v. 2711 Hollywood Beach Condominium Ass’n, Inc., 207 So. 3d 299 (Fla. 3d DCA 2016) (recognizing “cat-out-of-the-bag” disclosure as appropriate for certiorari relief).
19 See Old Repub. Ins. Co. v. Whitworth, 442 So. 2d 1078 (Fla. 3d DCA 1983); State v. Luckie, 145 So. 2d 239 (Fla. 1st DCA 1962); Kaplan v. Circuit Ct. of Tenth Jud. Cir. For Polk Cty., 495 So. 2d 231 (Fla. 2d DCA 1986).
20 Taos Constr., Inc. v. Mandico, 566 So. 2d 910 (Fla. 4th DCA 1990).
21 Id. at 910.
22 Mandico, 605 So. 2d at 854.
23 Id. at 855.
24 See Breakers Palm Beach v. Gloger, 646 So. 2d 237 (Fla. 4th DCA 1994).
25 See Hastings v. Demming, 682 So. 2d 1107, 1113 (Fla. 2d DCA 1996).
27 Id. at 720.
29 See Fla. Dept. of Corrections v. Culver, 716 So. 2d 768 (Fla. 1998) (holding that a court may not look into the record to determine nature of ruling where it is not apparent on ruling’s face that denial of workers’ compensation immunity was “as a matter of law”).
30 See Fist Constr., Inc. v. Obandon, 2017 WL 5760264 (Fla. 3d DCA, Nov. 29, 2017); Amorin v. Gordon, 996 So. 2d at 914; St. Lucie Falls Prop. Owners Ass’n v. Morelli, 956 So. 2d 1283 (Fla. 4th DCA 2007).
31 Villalta v. Cornn Int’l, Inc., 109 So. 3d 278 (Fla. 1st DCA 2013); Gladden v. Fisher Thomas, Inc., 232 So. 3d 1146 (Fla. 1st DCA 2017).
32 See Figueroa v. Delant Const. Co., 118 So. 3d 272 (Fla. 3d DCA 2013); Vallejos v. Lan Cargo, S.A., 116 So. 3d 545 (Fla. 3d DCA 2013); Boston v. Publix Super Markets, Inc., 112 So. 3d 654 (Fla. 4th DCA 2013).
33 See Coca Cola Enterprises, Inc. v. Montiel, 985 So. 2d 19 (Fla. 2d DCA 2008).
34 See Catalfumo Constr., LLC v. Varella, 28 So. 3d 963 (Fla. 3d DCA 2010) (The author represented Catalfumo Constr. in this case.).
35 Id. at 964.
36 See Halifax Paving v. Scott & Jobalia Constr., 565 So. 2d 1346, 1347 (Fla. 1990).
37 See Sherrill v. Corbett Crane Svcs., Inc., 656 So. 2d 181 (Fla. 5th DCA 1995); Lund v. Gen. Crane, Inc., 638 So. 2d 146 (Fla. 4th DCA 1994).
38 See Antinarelli v. Ocean Suite Hotel, 642 So. 2d 661 (Fla. 1st DCA 1994); Roberts v. Gator Freightways, Inc., 538 So. 2d 55 (Fla. 1st DCA 1989).
39 See Fleetwood Homes of Fla. v. Reeves, 833 So. 2d 857, 864-65 (Fla. 2d DCA 2002), rev’d on other grounds, 889 So. 2d 812 (Fla. 2004).
JAMES W. SHERMAN is a board certified appellate specialist. He handles civil appeals and trial support matters throughout Florida and regularly argues before all five district courts of appeal. Sherman has also briefed cases in the Florida Supreme Court and the U.S. Court of Appeals for the 11th Circuit.
This column is submitted on behalf of the Appellate Practice Section, Kristin A. Norse, chair, and Thomas Seider, editor.