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Larzelere v. Employers Ins. of Wausau

District Court of Appeal of Florida, Second District
Feb 22, 1993
613 So. 2d 510 (Fla. Dist. Ct. App. 1993)

Summary

finding leased crane operator to be borrowed servant because he was being directed in operating the crane by hand signals from employees of special employer

Summary of this case from Bruno v. Destiny Transp., Inc.

Opinion

No. 91-04047.

January 15, 1993. Rehearing Denied February 22, 1993.

Appeal from the Circuit Court, Pinellas County, Fred L. Bryson, J.

John A. Lloyd, Jr., of John Lloyd Law Offices, P.A., St. Petersburg, for appellants.

Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller, Goldman, Freeman Lovell, P.A., St. Petersburg, for appellees C.P. Ward and KBH Equip.


Charles Larzelere and Christel Larzelere, his wife, have appealed from a final summary judgment in favor of C.P. Ward, Inc., and KBH Equipment Company. We reverse.

Charles Larzelere, an employee of Enterprise Building Corporation, was injured on the job when shorejacks being raised by a crane fell and hit him. The crane was owned and furnished by KBH and Ward, but the crane and the operator had been leased to Enterprise. When the accident occurred, Enterprise's employees had seated the load on the hook and were directing the crane operator with hand signals.

The trial court granted summary judgment on the ground that suit against KBH and Ward was barred by the exclusive remedy provision of section 440.11, Florida Statutes, the workers compensation statute. The trial court concluded that, as in Halifax Paving v. Scott Jobalia Construction Co., Inc., 565 So.2d 1346 (Fla. 1990), the crane had become a workplace tool of Enterprise. See Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla. 1966). When a dangerous instrumentality is leased to an employer, the lessor shares the employer's worker's compensation immunity from suit by employees. Morales v. Ryder Truck Rental, 559 So.2d 317 (Fla. 3d DCA 1990). The crane operator, acting under Enterprise's direction, became Enterprise's borrowed servant.

Although the trial court acted correctly in its disposition of the negligence issue, it failed to take into account that the Larzeleres had also sued Ward and KBH for supplying a defective crane. In the order granting summary judgment in favor of Ward and KBH on the issue of the crane operator's negligence, the trial court did not preserve the Larzeleres' pleaded product liability claim.

The fifth district has recently addressed a similar situation in Litton v. Saf-T-Green of Orlando, Inc. and Stillman, 608 So.2d 908 (Fla. 5th DCA 1992). There the court stated,

Given the evidence in the record, this case appears ultimately to turn on a disputed issue of fact: was the cause of accident a defect or other problem with the machinery or was it operator error? Under the former, Saf-T-Green would be liable to the employee; under the latter, Saf-T-Green would enjoy worker's compensation immunity. This factual issue could not, however, be decided by way of summary judgment.

608 So.2d at 910.

At the hearing on the Ward/KBH motion for summary judgment, the attorney for the Larzeleres specifically advised the trial court that the products liability claim was not a part of the motion for summary judgment. The court nevertheless entered a final summary judgment in favor of KBH and Ward, without excluding that claim from its order.

Because genuine issues of material fact may exist concerning whether a defect, if any, in the crane supplied by Ward and KBH contributed to the Larzeleres' injuries, the final summary judgment is reversed to the extent that it deprives the Larzeleres of their product liability claim.

PATTERSON and BLUE, JJ., concur.


Summaries of

Larzelere v. Employers Ins. of Wausau

District Court of Appeal of Florida, Second District
Feb 22, 1993
613 So. 2d 510 (Fla. Dist. Ct. App. 1993)

finding leased crane operator to be borrowed servant because he was being directed in operating the crane by hand signals from employees of special employer

Summary of this case from Bruno v. Destiny Transp., Inc.

affirming grant of summary judgment in favor of defendant-lessor on issue of crane operator's negligence on account of workers' compensation immunity

Summary of this case from Veliz v. Rental Service Corp. USA, Inc.
Case details for

Larzelere v. Employers Ins. of Wausau

Case Details

Full title:CHARLES LARZELERE AND CHRISTEL LARZELERE, HIS WIFE, APPELLANT, v…

Court:District Court of Appeal of Florida, Second District

Date published: Feb 22, 1993

Citations

613 So. 2d 510 (Fla. Dist. Ct. App. 1993)

Citing Cases

Veliz v. Rental Service Corp. USA, Inc.

at 910; see also Larzelere v. Employers Ins. of Wausau, 613 So.2d 510, 511 (Fla. 2nd DCA 1993), rev. denied,…

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Halifax suggests, without deciding, that a crane company that hires out a crane and operator to a general…