Waiver in Labor Broker’s Employment Contract Saves Client from Suit by Injured Security Guard
A Florida appellate court recently affirmed a trial court’s decision granting summary judgment to a defendant company in a negligence action filed against it by a security guard who was employed by a security services firm and assigned to the defendant’s commercial premises, on the ground that the plaintiff, at the time of his original employment, signed an employment agreement with the security services firm that waived any and all civil actions against the service firm’s clients for injuries that were covered by state workers’ compensation laws [Merlien v. JM Family Enters., 2020 Fla. App. LEXIS 10525 (4th DCA, July 22, 2020)]. The plaintiff unsuccessfully argued that the disclaimer/waiver was void for ambiguity and, alternatively, that it was unenforceable because it contravened Florida public policy.
Background
The plaintiff was employed by AlliedBarton, a firm that provides security services for various clients. He was assigned to work as a security guard for the defendant. The plaintiff allegedly sustained injuries in a slip and fall accident at the defendant’s premises. He subsequently recovered workers’ compensation benefits from AlliedBarton, but he filed the instant civil action against the defendant, contending his injuries were caused by the defendant’s negligent maintenance of its stairs.
At the time the plaintiff began work for AlliedBarton, he signed an employment agreement that, inter alia, waived his right to make a claim, commence a lawsuit, or recover damages or losses from any of AlliedBarton’s clients to which the plaintiff might be assigned. Two years after plaintiff filed his complaint, the defendant moved for summary judgment, arguing that the plaintiff waived his right to file the civil action against the defendant when he executed the employment agreement. The trial court considered the matter and granted the defendant summary judgment. Plaintiff appealed.
Appellate Court Decision
Initially, the appellate court acknowledged the tension between conflicting policies. On the one hand, public policy disfavored exculpatory contracts because they tended to relieve a party of obligation from using due care. On the other hand, public policy favored the enforcement of contracts, as a general proposition. The court noted, therefore, the Florida rule: Exculpatory provisions in contracts will only be upheld when the language of the provision clearly and unambiguously communicates the scope and nature of the disclaimer.
Disclaimer was Unambiguous
The court indicated the disclaimer here was unambiguous. It was also limited to injuries that were covered under state workers’ compensation laws. The intention as to what was relieved from liability was clear and unequivocal.
Public Policy Did Not Bar the Exculpatory Provision
Rather than contravene public policy, the disclaimer conformed to public policy, said the court. The state’s workers’ compensation law was to be construed so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful employment at a reasonable cost to the employer. Here, said the court, it was undisputed that the plaintiff’s injury fell within the scope of the workers’ compensation statutes and that he received benefits for his injuries under AlliedBarton’s policy of insurance.
Other States’ Treatment of Similar Exculpatory Provisions
The court observed that at least two courts from other jurisdictions had considered the same AlliedBurton disclaimer and found that it did not contravene public policy [see Bowman v. Sunoco, Inc., 620 Pa. 28, 65 A.3d 901 (2013); Brown v. 1301 K Street Ltd. P’ship, 31 A.3d 902 (D.C. 2011)]. The court acknowledged in a footnote that the Supreme Court of New Jersey had considered the waiver and held it violated New Jersey public policy [see Vitale v. Schering-Plough Corp., 231 N.J. 234, 174 A.3d 973 (2017); for my 2017 discussion of the Vitale decision, click here].
Commentary
As I mentioned in a roundtable discussion at an ABA workers’ compensation conference two years ago, shortly after the Vitale decision was released, I understand AlliedBarton’s desire to protect its clients from suits by security guards assigned to their facilities. On the other hand, in the vast majority of jurisdictions, that client would be considered a “borrowing employer” exempt from suit by the security guard [see Larson’s Workers’ Compensation Law, §§ 67.01, 100.01, 111.01, et seq.], with or without the exculpatory provision included in the instant case’s scenario. One of the difficulties in reviewing appellate decisions is that one is generally excluded from preliminary motion hearings and the like. Here, two years passed between the filing of the complaint and the motion for summary judgment on exculpatory language grounds. Perhaps the parties were arguing about the application of the exclusive remedy provisions of the Florida Workers’ Compensation Act. My reading of Florida law says the plaintiff should have been barred from recovery on exclusivity grounds as well.