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The “Unrelated Works” Exception to Workers’ Compensation Immunity

Labor and Employment Law

Section 440.11(1) of Florida Statutes provides that the liability of an employer under the workers’ compensation law “shall be exclusive and in place of all other liability.” The employer’s immunity is a quid pro quo; the employee forgoes the right to sue in exchange for the employer’s assumption of liability without fault.1 Prior to 1978, although an employee entitled to workers’ compensation benefits was barred from suing his or her employer in tort, the injured employee could nevertheless sue a fellow employee whose negligence had caused the injury.2

In 1978, §440.11(1) was amended to extend the employer’s immunity from tort liability to co-employees acting in furtherance of the employer’s business.3 This fellow employee immunity is qualified by two exceptions. It does not apply to a co-employee who acts with willful and wanton disregard, unprovoked physical aggression, or gross negligence. Nor does it apply when the employees “are assigned primarily to unrelated works within private or public employment.”4

The statute does not define what the term “assigned primarily to unrelated works” means.5 The unrelated works exception to workers’ compensation immunity is unique to Florida.6 Numerous appellate decisions have interpreted and applied the exception over the past 20 years. The courts have been fairly consistent in narrowly construing the exception so as not to undermine the statutory scheme of immunity as a quid pro quo for liability without fault. In the absence of a clear expression of legislative intent, however, the courts have employed different analytical approaches. Although the Supreme Court of Florida has recently addressed the unrelated works exception, a uniform analytical framework has yet to emerge.7

“Case-by-case” Approach
Most of the cases that have applied the unrelated works exception have followed what has been referred to as a “case-by-case” approach focusing on whether the employees are part of the same team or on the same project. The first case to consider the scope of the exception was Johnson v. Comet Steel Erection, Inc., 435 So. 2d 908 (Fla. 3d DCA 1983). In that case, an employee of a general contractor was injured as a result of the negligence of an employee of a subcontractor. Although their individual duties and skills were different (one was a laborer and the other was a welder), the court held that because they were “both employed on-site in the same construction project,” their work was not unrelated, and the exception to immunity did not apply. Id. at 909.

The Second District cited Johnson in support of the same conclusion in Abraham v. Dzafic, 666 So. 2d 232, 233 (Fla. 2d DCA 1995). In holding that the unrelated works exception did not apply, the court noted that “Abraham and Dzafic were employees of the same contractor working on the same construction site. . . . Although one was a painter and the other was a fluorescent lighting technician, and their work skills may have been ‘unrelated,’ their work was not.” Id.

Vause v. Bay Medical Center, 687 So. 2d 258 (Fla. 1st DCA 1996), review denied, 695 So. 2d 703 (Fla. 1997), was a wrongful death action brought by the estate of an obstetrical nurse who died from decompression sickness after accompanying a patient inside a hyperbaric chamber at the hospital where she was employed. The defendants included the operator of the hyperbaric chamber, a director of the hyperbaric center, and the administrator of the hospital. The court held that the unrelated works exception did not apply. Although the decedent and the operator of the hyperbaric chamber had different duties and were assigned to different departments of the hospital, the court found they were both involved in the same project (patient care) and described their relationship as similar to the welder and the laborer in the Johnson case. Id. at 263. The court also held that the administrative personnel and the nurse were not engaged in unrelated works, stating that “[e]ach individual defendant was assigned to duties related to the purpose and function of decedent’s job: The provision of health care to patients of the medical center.” Id.

In Turner v. PCR, Inc., 732 So. 2d 342 (Fla. 1st DCA 1998), quashed, 754 So. 2d 683 (Fla. 2000), one employee was killed and another employee was injured in an explosion at a chemical plant. One of the employees worked in the catalog department, and the other worked in the research and development department. The court rejected an attempt to avoid the workers’ compensation immunity based on the unrelated works exception. The court noted that technicians in both departments worked “cooperatively” in a “team effort,” and their different duties “related to the same project.” Id.

In Dade County School Bd. v. Laing, 731 So. 2d 19 (Fla. 3d DCA 1999), a high school teacher was injured when he was hit by a golf cart operated by a custodian at the school. The court found that although the employees “were assigned different duties and had different work skills,. . . both were involved as part of a team in promoting education at the school campus.” Id. at 20. Because both were engaged in activities “primarily related to the provision of education related services,” the court concluded that the unrelated works exception did not apply. Id. But, cf., Holmes County School Bd. v. Duffell, 651 So. 2d 1176 (Fla. 1995).8

The Third District again addressed the unrelated works exception in the school context in Sanchez v. Dade County School Bd., 784 So. 2d 1172 (Fla. 3d DCA 2001), review granted, 819 So. 2d 139 (Fla. 2002). In that case, a teacher who was sexually assaulted and beaten at work by a trespasser sued the school board based on alleged negligence of school security personnel. The district court affirmed a summary judgment in favor of the school board based on workers’ compensation immunity and rejected a contention that the teacher and the security personnel were assigned to unrelated works.

The Fifth District reached the same result in Taylor v. School Bd. of Brevard County, 790 So. 2d 1156 (Fla. 5th DCA 2001), approved, 29 Fla. L. Weekly S421c (Fla. Aug. 19, 2004). In Taylor, a school bus attendant sued the school board for injuries sustained due to a faulty wheel chair lift on a bus. The lift had been maintained, repaired, and inspected by school board mechanics. The court affirmed a summary judgment in favor of the school board on the grounds that the alleged negligent mechanics and the bus attendant were assigned to related works. The court reasoned that they were involved in the same project, i.e., the provision of transportation services to Brevard County schoolchildren.

The “Bright Line” Test
In considering whether co-employees were assigned to unrelated works in the case of Lopez v. Vilches, 734 So. 2d 1095, 1097 (Fla. 2d DCA 1999), review denied, 749 So. 2d 504 (Fla. 1999), the Second District focused on two factors: whether the employees worked at the same physical location and whether their work served the same business purpose. This analysis has been contrasted with the “case-by-case” approach and referred to as the “bright line” test.9

The plaintiff in Lopez was injured while driving a funeral home van that malfunctioned. He sued three co-employees who maintained the fleet of vehicles used by the funeral home. After noting the legislature’s failure to define “unrelated works,” the district court cited a dictionary definition of “works” as “[a] factory, plant, or similar building or system of buildings where a specific type of business or industry is carried on.” Id. (citation omitted). The funeral home where the plaintiff worked was geographically separated from the facility where the defendants performed their maintenance duties. Citing the separate physical locations of the plaintiff’s and defendants’ work, and the apparently distinct purposes of their work (general funeral home duties versus vehicle maintenance), a divided panel reversed the trial court’s summary judgment in favor of the defendants.10

Combined Application of Both Approaches
Subsequent to Lopez, three decisions of the Fourth District applied both the so called “case-by-case” and “bright line” approaches in analyzing the unrelated works exception. In each case, the court found the result to be the same regardless of which analytical approach was employed.

In School Bd. of Broward County v. Victorin, 767 So. 2d 551 (Fla. 4th DCA 2000), review denied, 786 So. 2d 581 (Fla. 2001), a school bus driver claimed another driver drove her bus into his. The district court commented that both employees “were bus drivers for the school board; they both drove buses in Broward County on Interstate 95; and the purpose of both their jobs was to transport schoolchildren.” Id. at 554. The court concluded that “[w]hether we apply Lopez’s bright-line physical location/business purpose test, or Laing’s case-by-case approach, it is clear that [the two drivers] were assigned primarily to related works.” Id.

It was determined that either of “the two slightly different approaches” led to the conclusion that two county employees involved in an automobile accident were assigned to unrelated works in Palm Beach County v. Kelly, 810 So. 2d 560, 562 (Fla. 4th DCA 2002). One of the employees was on a team that maintained the grounds, roads, and taxiways at the Palm Beach International Airport; the other performed maintenance and repair work on heavy equipment, primarily excavation equipment at the county’s shell rock pit in Boca Raton. The court found that “[a]lthough they both began and ended their day at county offices in the same general location, they worked on different projects at different locations and furthered different business purposes of the county.” Id.

In Fitzgerald v. South Broward Hosp. Dist., 840 So. 2d 460 (Fla. 4th DCA 2003), a nurse was injured at the hospital where she worked when the door to a bathroom stall fell on her due to the alleged negligence of hospital maintenance personnel. The court found that the nurse and the maintenance personnel of the hospital were not assigned primarily to unrelated works under either of the two approaches. Id. at 464. Applying the “case-by-case” approach, the court stated that “[a]lthough they worked in different departments and had dissimilar duties that required separate skills, both performed services relating to the hospital’s mission, which was the treatment of patients.” Id. Applying the “bright-line” test, the court noted that the employees “worked at the same physical location” and “shared a unified business purpose with their fellow employees.” Id.

The Florida Supreme Court’s Decision in Taylor
The Florida Supreme Court reviewed the Fifth District’s decision in Taylor (involving the school bus attendant and mechanics) on the basis of conflict with the Second District’s decision in Lopez (involving the funeral home van driver and mechanics). Taylor v. School Bd. of Brevard County, 29 Fla. L. Weekly S421c (Fla. August 19, 2004). The Supreme Court framed the issue as “whether the Legislature intended that the unrelated works exception be construed liberally or narrowly.” Id. The court concluded that the exception must be construed narrowly and stated that “applying the unrelated works exception liberally would substantially handicap the underlying purpose of the compensation scheme to compensate employees for workplace injuries regardless of fault.” Id.

In discussing the facts of the two cases, the Supreme Court expressly agreed with the reasoning of the trial court in Taylor that the bus attendant and the mechanics were working to achieve a common goal of providing safe transportation services to the county’s schoolchildren. Accordingly, it could not be said that they were engaged in unrelated works. The court also agreed with the conclusions of Justice Quince’s dissent in Lopez that the funeral home van driver and mechanics were not engaged in unrelated works as a matter of law.

The Supreme Court approved the Fifth District’s decision in Taylor and disapproved the second district’s decision in Lopez. The court found that the Taylor holding “comports with the overall legislative intent of the Florida Workers’ Compensation Law” and stated that a “contrary holding giving wide breadth to the rare exceptions to workers’ compensation immunity would merely erode the purpose and function of the Workers’ Compensation Law as established by the Legislature.” Id.

The per curiam opinion of the majority limits its analysis to the facts of the two cases under review. It does not adopt, reject, or comment upon the different analytical approaches used in other cases. Nor does it attempt to articulate a specific methodology for application of the unrelated works exception. The opinion states: “While we would like to be more precise in providing guidance to those initially charged with deciding disputes based upon this exception, we are limited by our lack of precise knowledge of the legislative intent behind the exception.” Id.

Justice Lewis, joined by Chief Justice Pariente, concurred with the majority’s approval of the Fifth District’s decision in Taylor but disagreed with the conclusion that Lopez was wrongly decided. In his concurring opinion, Justice Lewis acknowledges the problems of ambiguity in the statutory language and the lack of a clearly discernable legislative intent, but criticizes the majority for failing to formulate parameters to guide the lower courts in the application of the unrelated works exception.

The concurring opinion reviews the past efforts of district courts to apply the unrelated works exception, discusses the case-by-case “same project” test and the bright-line “physical location/business purpose” test, and ultimately advocates an approach that would combine locational and operational elements. The primary determining factor in the model proposed by Justice Lewis seems to be whether the employees were working together as part of a “team or specific business project” at the time of the injury. Diverse activities of co-employees would not be deemed related merely because they contribute to a broad business purpose. For example, the nurse and the operator and director of the hyperbaric chamber in Vause would be considered part of the same team, but the hospital administrator would not. Similarly, a nurse and a maintenance worker employed at a large hospital with diverse employees would not be part of the same team and would be deemed to be engaged in unrelated works.

The majority opinion in Taylor reinforces a rule of narrow construction of the unrelated works exception which has resulted in infrequent application of the exception to defeat immunity. The majority declined to adopt the approach advocated by Justice Lewis which, by imposing a more rigorous standard of what constitutes related works, would have broadened application of the exception. The Taylor decision provides little guidance for future application beyond the general directive to interpret the exception narrowly.

The inability of the courts to formulate specific rules to achieve the objectives of the unrelated works exception stems from the inability to ascertain what those objectives are. No court seems to have been able to identify a beneficial public purpose served by the exception.11 The denial of immunity based on gross negligence or willful and wanton disregard for safety is readily understandable as a means of discouraging such undesirable behavior. It is not apparent, however, why employee immunity should depend upon work assignments over which the employee likely has no control. In the absence of any discernable rationale for using seemingly arbitrary factors such as work locations and assigned duties to determine whether an employee will be immune from tort liability, it is likely that the courts will continue to struggle with application of the unrelated works exception.

1 See Fitzgerald v. South Broward Hosp. Dist., 840 So. 2d 460, 461 (Fla. 4th D.C.A. 2003).
2 See Frantz v. McBee, 77 So. 2d 796 (Fla. 1955).
3 See 1978 Fla. Laws ch.300, §2.
4 Fla. Stat. §440.11(1)(b)(2) (2004).
5 See School Bd. of Broward County v. Victorin, 767 So. 2d 551, 553 (Fla. 4th D.C.A. 2000), review denied, 786 So. 2d 581 (Fla. 2001).
6 See Fitzgerald, 840 So. 2d at 462.
7 Taylor v. School Bd. of Brevard County, 29 Fla. L. Weekly S421c (Fla. Aug. 19, 2004).
8 Duffell involved a claim brought by a school custodian who was injured by the negligence of a school bus driver. The trial court determined that the two employees were assigned to unrelated works. That determination was not disputed on appeal. Duffell, 651 So. 2d at 1177 n.1. The propriety of naming the school board as a defendant was addressed by the Supreme Court in Duffell. Although the unrelated works exception applies to “fellow-employee immunities,” the court held that the school board could be named as a defendant under a statute providing that the exclusive remedy of a party injured by a public employee is an action against the governmental employer. Fla. Stat. §768.29(9)(a) (1991). The court explained that the school board was “not being sued in its capacity as Duffell’s employer” but as a “surrogate defendant” for the co-employee. Id. at 1179.
9 See, e.g., Fitzgerald, 840 So. 2d at 463.
10 Judge Quince (now Justice Quince) disagreed with the majority. In her dissenting opinion, she stated that she would affirm the trial court’s determination that the coemployees were not engaged in unrelated works as a matter of law. Id. at 1098.
11 In Vause v. Bay Medical Center, 687 So. 2d 258, 267 (Fla. 1st D.C.A. 1996), review denied, 695 So. 2d 703 (Fla. 1997), Judge Miner (concurring in part and dissenting in part) speculated that a possible purpose of the unrelated works exception could be to discourage employers from diverting employees from their primary full-time duties to occasional, nonroutine duties on the assumption that such a practice might increase the danger of injuries. Although that purpose might be furthered by denying immunity to the employer who makes the work assignments, it is not clear how the denial of immunity to the employee would contribute to such an objective.

William S. Dufoe is a partner with Holland & Knight LLP, Lakeland. He holds the degrees of B.S., cum laude, from Florida State University, M.S. from the University of Southern California, and J.D., with high honors, from Florida State University.
This column is submitted on behalf of the Workers’ Compensation Section, Nancy L. Cavey, chair, and Pamela L. Foels, editor.

Labor and Employment Law