Third District Court of Appeal
State of Florida
Opinion filed October 29, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-2878
Lower Tribunal No. 12-28934
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Gwendolyn Baker,
Appellant,
vs.
Airguide Manufacturing, LLC,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Ronald C.
Dresnick, Judge.
Russo Appellate Firm, P.A., and Christopher J. Bailey, for appellant.
Law Offices of Richard A. Sherman, P.A., and Richard A. Sherman and
James W. Sherman; Law Offices of Esther B. Nickas, and Edelberto Farres, for
appellee.
Before ROTHENBERG, LAGOA, and SCALES, JJ.
ROTHENBERG, J.
The plaintiff below, Gwendolyn Baker, appeals a final summary judgment
entered in favor of the defendant, Airguide Manufacturing, LLC (“Airguide”),
based on the trial court’s ruling that Airguide was entitled to workers’
compensation immunity. Because we find the trial court correctly found that
Airguide was entitled to immunity under section 440.11(2) of the Florida Statutes
(2010), we affirm.
Baker began working for a company called Pacesetter in January 2008. The
record establishes that Pacesetter is an employment agency that supplies
employees to shorthanded companies. For the first six months of her employment
with Pacesetter, Baker was placed with various Carmax locations. Then, in July
2008, Pacesetter placed Baker (along with several other Pacesetter employees)
with Airguide, an air conditioning duct manufacturer.
Baker worked at Airguide without incident for two years, but on July 28,
2010, a machine designed to punch holes in the aluminum air duct parts
unexpectedly activated and injured Baker’s right index finger. Baker’s immediate
supervisor at Airguide, Corine Graham (“Graham”), helped Baker wash the wound
and then called Pacesetter to deal with the issue. Pacesetter sent a driver to pick up
Baker, and Baker was taken back to the Pacesetter facilities, where she filed a
report. Baker was subsequently taken to a doctor’s office and then later to a
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hospital. Baker experienced significant pain and immobility in her finger and had
to undergo physical therapy and rehabilitation. Baker claims she still experiences
pain in the finger to this day.
Baker successfully filed a workers’ compensation claim with Pacesetter after
her accident, and she was reimbursed for her injury based on the statutorily
prescribed reimbursement amount. Unsatisfied with her recovery amount, Baker
subsequently filed the underlying negligence suit against Airguide on July 24,
2012. After some discovery, Airguide filed a motion for summary judgment,
arguing that it was immune from liability because Baker was either a “borrowed
servant” under common law doctrine or was an employee of a help supply services
company as provided in section 440.11(2) of the Florida Statutes, and therefore,
Baker’s exclusive remedy was through workers’ compensation, which she had
already received.
The motion for summary judgment cited and relied heavily upon Baker’s
deposition testimony. In that deposition, which was taken on May 21, 2013, Baker
stated that she reported directly to Airguide in the mornings, was trained to use the
machines by Airguide employees, was monitored and reprimanded by Airguide
employees, and was assigned weekly hours and tasks by Airguide management,
but that Pacesetter issued Baker’s paychecks and sent supervisors to the Airguide
premises once or twice per week to check on the Pacesetter employees.
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Two days before the summary judgment hearing, and four months after
Baker’s deposition, on September 11, 2013, Baker filed an affidavit and an errata
sheet to her deposition that materially conflicted with some of the statements she
had made during her deposition. Based on the changes to her testimony, Baker
argued that there was a genuine dispute over material facts whether Airguide
possessed the requisite degree of control over Baker to establish Airguide’s
immunity under the common law “borrowed servant” doctrine. After some legal
argument on the issue, the trial court granted Airguide’s motion for summary
judgment. Baker filed a motion for rehearing, which the trial court denied, and this
appeal followed.
Baker contends on appeal that the trial court erred by failing to consider her
affidavit and errata sheet and that it improperly granted Airguide’s motion for
summary judgment because Airguide did not meet its burden of establishing that it
was entitled to workers’ compensation immunity. We disagree.
As to the first issue, it is well-established Florida law that a party may not
rely on an affidavit that contradicts or repudiates prior deposition testimony simply
to defeat a motion for summary judgment. Ellison v. Anderson, 74 So. 2d 680,
681 (Fla. 1954); United Auto. Ins. Co. v. Seffar, 37 So. 3d 379, 380-81 (Fla. 3d
DCA 2010). In this case, Baker testified in a sworn deposition that Airguide had
nearly complete control over her everyday work activities and that Pacesetter
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merely provided her paycheck. Then, curiously, nearly four months after her
deposition and only two days before the summary judgment hearing, Baker filed
her affidavit and errata sheet to state that she checked in with Pacesetter every
morning, that Pacesetter supervisors often checked on her at Airguide, and that
Airguide had limited authority to direct her work, determine her hours, or
terminate her. These statements clearly contradict Baker’s deposition testimony,
and they evidence an attempt on Baker’s part to contravene her prior testimony and
create a factual dispute regarding Airguide’s ability to control her workplace
conduct—one of the main factors considered under the “borrowed servant”
doctrine. We accordingly find that the trial court did not err by refusing to
consider the affidavit and errata sheet testimony when granting Airguide’s motion
for summary judgment.
Although we find that the trial court did not err by rejecting Baker’s
contradictory affidavit and errata sheet, the inadmissibility of the affidavit and
errata sheet is not dispositive. While these two documents may have potentially
created a dispute as to whether Airguide sufficiently established that it was entitled
to immunity under the common law “borrowed servant” doctrine, they create no
dispute as to whether Airguide is entitled to immunity as a “help supply services
company” under section 440.11(2) of the Florida Statutes. Because Airguide is
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clearly a help supply services company under section 440.11(2), we affirm the trial
court’s ruling on that issue as well.
As explained by this Court in Cabrera v. T.J. Pavement Corp.:
Florida’s workers’ compensation act sets forth a comprehensive
scheme that provides benefits to workers injured during employment.
This system, which is based on mutual renunciation of common law
rights and defenses by employers and employees, ensures that injured
employees who fall within its scope receive swift compensation and
medical benefits from the employer irrespective of fault or cause of
injury. In exchange, employers who comply with the workers’
compensation act receive immunity from suit except in limited
circumstances.
2 So. 3d 996, 998 (Fla. 3d DCA 2008) (citations omitted).
As an extension of the immunity conferred on employers by workers’
compensation, the common law “borrowed servant” doctrine was developed to
cover employers that utilize other companies’ employees to complete their work
under circumstances indicating that the borrowing employer is the de facto
employer of the borrowed employee at the time of the injury. See Hazealeferiou v.
Labor Ready, 947 So. 2d 599, 603 (Fla. 1st DCA 2007) (“The doctrine of lent
employment reflects the dual purpose of ensuring that a lent employee is covered
by workers’ compensation and immunizing employers attaining ‘special employer’
status from liability in tort.”). The company “borrowing” employees from another
company is deemed the borrowed employees’ “special employer,” and the special
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employer is entitled to the same workers’ compensation immunity as the
employees’ actual employer where:
“(1) there was a contract for hire, either express or implied, between
the special employer and the employee; (2) the work being done at the
time of the injury was essentially that of the special employer; and (3)
the power to control the details of the work resided with the special
employer.”
Fossett v. Se. Toyota Distribs., LLC, 60 So. 3d 1155, 1158 (Fla. 1st DCA 2011)
(quoting St. Lucie Falls Prop. Owners Ass’n v. Morelli, 956 So. 2d 1283, 1286
(Fla. 4th DCA 2007)).
In addition to the common law “borrowed servant” doctrine, section
440.11(2) of the Florida Statutes also extends statutory workers’ compensation
immunity to employers utilizing the employees of a “help supply services
company.” Specifically, subsection 440.11(2) states:
The [workers’ compensation] immunity from liability described in
subsection (1) shall extend to an employer and to each employee of
the employer which uses the services of the employees of a help
supply services company, as set forth in North American Industrial
Classification System Codes 561320 and 561330, when such
employees, whether management or staff, are acting in furtherance of
the employer’s business. An employee so engaged by the employer
shall be considered a borrowed employee of the employer and, for
the purposes of this section, shall be treated as any other employee
of the employer. The employer shall be liable for and shall secure the
payment of compensation to all such borrowed employees as required
in s. 440.10, except when such payment has been secured by the help
supply services company.
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(emphasis added). North American Industrial Classification System (“NAICS”)
Code 561320, which is expressly incorporated into subsection 440.11(2),1 further
defines “help supply services company” by providing:
561320 Temporary Help Services
This industry comprises establishments primarily engaged in
supplying workers to clients’ businesses for limited periods of time to
supplement the working force of the client. The individuals provided
are employees of the temporary help service establishment. However,
these establishments do not provide direct supervision of their
employees at the clients’ work sites.
Thus, an employer can establish its right to workers’ compensation
immunity by either meeting the three-prong test for common law “borrowed
servant” immunity or by establishing that the injured employee came from a “help
supply services company” under the terms of the statute at the time the employee
suffered a work-related injury. Hazealeferiou, 947 So. 2d at 603.
The three-prong common law test requires a substantial factual inquiry,
including proof of either an express or implied contract between the special
employer and the claimant and details regarding the relative control the general
employer and special employer exercised over the employee. Suarez v.
Transmontaigne Servs., Inc., 127 So. 3d 845, 847-48 (Fla. 4th DCA 2013).
Conversely, the statutory immunity for employers that utilize help supply services
1 Subsection 440.11(2) also incorporates NAICS Code 561330. Code 561330
defines Professional Employer Organizations, and its terms do not apply to this
case.
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companies requires only that the special employer demonstrate that the employee
was acquired from a help supply service company. § 440.11(2); Hazealeferiou,
947 So. 2d at 603.
We need not engage in the factual determination of whether the three-prong
common law test was met in this case because Pacesetter is clearly a help supply
services company. Pacesetter is a national corporation that leases professional
workers and manual laborers to various companies throughout the United States
for a fee—the very definition of a help supply service company. See Tu-Lane
Invs., Inc. v. Orr, 889 So. 2d 961, 963 (Fla. 1st DCA 2004) (“The definition of
‘help supply services company’ includes ‘employee leasing company.”’ quoting
Caramico v. Artcraft Indus., Inc., 727 So. 2d 348, 349 (Fla. 5th DCA 1999)).
Baker herself testified at her initial deposition and in the subsequently filed errata
sheet and affidavit that Pacesetter was her actual employer, but that she was leased
to various other employers. Indeed, Baker was only one of several Pacesetter
employees that had been sent to work at Airguide to meet Airguide’s labor
demands. Thus, Pacesetter is a help supply service company that is entitled to
workers’ compensation immunity under the terms of the statute.
Affirmed.
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