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Florida Construction Law News

16MAR 2015

Recent Case Law to Help Navigate Dual Employment in a Construction Setting

by Ryan M. Charlson, Esq.

Recently, the First DCA addressed the issue of dual employment as it relates to a contractor and subcontractor. See Roof Painting by Hartzell, Inc./Summit Holdings Claim Center v. Andres Hernandez, Colors Construction, Inc., and Guarantee Insurance Company, 2015 WL 641199, (Fla. 1st DCA 2015).

Dual employment occurs when a single employee is under a contract of hire with two separate employers. See Interstate Industrial Park v. Afterdeck Restaurant, 478 So. 2d 852, 854 (Fla. 1st 1985). Under the separate control of each employer, the employee performs services for each employer that are largely unrelated to the services it performs for the other.  Under the dual employment doctrine, two employers may be liable for workers’ compensation separately or jointly depending on severability of the employee’s activity at the time of injury. When the employee’s activities are separable and can be clearly identified with one employer or the other, the particular employer whose work was being done at the time of injury will be held exclusively liable.

In the First DCA case, Roof Painting by Hartzell (“Hartzell”), a contractor, was hired to provide pressure cleaning and staining services. Hartzell subcontracted these services to Colors Construction, Inc. (“Colors”).  Andres Hernandez (“Hernandez”), a Colors employee, was injured performing the pressure cleaning services provided for in the subcontract. Subsequently, Hernandez sought workers’ compensation benefits from Hartzell and Colors.

Following an evidentiary hearing, the Judge of Compensation Claims (“JCC”) concluded that Hartzell and Colors were dual employers at the time of Hernandez’s injury. As such, the JCC ruled that Hartzell and Colors, through their carriers, were equally liable to provide Hernandez with workers’ compensation benefits.

The JCC’s ruling was subsequently appealed.  The First DCA, relying on Interstate Industrial Park, found that the evidence did not support a finding that Hartzell and Colors were dual employers. Even if the JCC had properly found two contracts of hire and separate control by both employers, the services Hernandez was performing at the time of his workplace injury were the same services for both Hartzell and Colors. Further, the evidence clearly showed that, in accordance with Hartzell’s subcontract with Colors, Colors provided workers’ compensation insurance coverage for its laborers on the job, including Hernandez.

Despite these facts, the JCC did not consider the applicability of § 440.10(1)(b), Fla. Stat. (2012).  This section states“[i]n case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.” As a result, the Court reversed the JCC’s finding of dual employment and remanded for further proceeding to include the consideration of § 440.10(1)(b), Fla. Stat. (2012).

Therefore, when representing a contractor or subcontractor and a claim of dual employment is at issue, keep in mind the Roof Painting by Hartzell decision, and more particularly, § 440.10, Fla. Stat.  This will ensure that if benefits are paid, they are paid by the appropriate contractor/employer.

Posted By Ryan M. Charlson, Esq.

Ryan M. Charlson is a Partner in CSK’s Construction Group and practices in the Fort Lauderdale and Miami offices. Mr. Charlson focuses his practice on construction, products liability, real estate, and insurance coverage disputes. Prior to joining CSK, Mr. Charlson practiced at a national firm that specializes in construction litigation, and more recently, he worked as in-house counsel for one of the nation’s largest real estate developers.