Florida’s Second DCA Reverses Itself; Public Utility Was “Contractor” as to its Maintenance Efforts

Following Tampa Electric Company's motion for rehearing regarding its October 20, 2020 decision, in which Florida’s Second District Court of Appeal had held that the public utility company’s obligation to maintain its facilities and equipment arose out of an administrative regulation and, therefore, was not the sort of obligation that could be “sublet” to a third party for purposes of the state’s statutory employer statute [§ 440.10(1)(b), Fla. Stat. (2017)], the Second DCA reversed itself, withdrew the October 2020 opinion, and substituted a new opinion in which it held a state trial court had erred by denying summary judgment in determining, as a matter of law, that the public utility was not entitled to workers’ compensation immunity [Tampa Elec. Co. v. Gansner, 2021 Fla. App. LEXIS 14640 (2d DCA, Nov. 10, 2021].

Background

Tampa Electric, a public utility, owns Big Bend Power Station, an electrical generating facility in Hillsborough County, Florida. Gansner and Carter were employed by Zachry Industrial Inc., an entity with whom Tampa Electric had contracted to provide maintenance work at Big Bend. Gansner and Carter sustained injuries at one of Big Bend’s condenser units, Unit 3, as they attempted to perform maintenance work on the access door of a condenser inlet tunnel.

Tampa Electric moved for summary judgment in the consolidated litigation, arguing that it was the statutory employer of Gansner and Carter pursuant to § 440.10(1)(b), Fla. Stat. (2017), and that since it was their statutory employer, the exclusivity provision of § 440.11, Fla. Stat. limited Gansner’s and Carter’s remedies to workers’ compensation benefits, which they had received through Zachry Industrial. The trial court denied the motion, explicitly finding that Tampa Electric was not the statutory employer of either Gansner or Carter. In October 2020, the Second DCA affirmed [2020 Fla. App. LEXIS 14601, 45 Fla. L. Weekly D 2358; for my extensive discussion of the earlier decision, click here].

Second DCA’s Reexamination of Issue

“To be sure,” said the Second DCA, just as the trial court had observed, Tampa Electric had a regulatory duty to maintain its generating equipment under Fla. Admin. Code R. 25-6.037(1) (requiring electric public utilities to operate their “equipment used in connection with the production, transmission, distribution, regulation, and delivery of electricity to any customer” in a manner that was “safe, efficient, and proper”). But appellate court also stressed that Tampa Electric’s status as a statutory employer would not be defeated by the existence of a regulatory obligation that overlapped with a corresponding contractual obligation to maintain the equipment.

When, as it had done here, Tampa Electric subcontracted with Zachry Industrial for the purposes of maintaining its equipment, it sublet to Zachry Industrial its implied obligation to maintain in working condition the equipment it uses to generate the electricity it was contractually obligated to supply. Accordingly, the Second DCA reversed the trial court

Accordingly, the Second DCA reversed the trial court’s order denying summary judgment to the extent that it determined, as a matter of law, that Tampa Electric was not entitled to workers’ compensation immunity. As to the trial court’s alternative conclusion that disputed issues of material fact precluded a determination that Tampa Electric was entitled to such immunity, the appellate court indicated it had no jurisdiction to review that conclusion. To that extent, therefore, the appellate court dismissed and remanded the action.