NO WORKERS’ COMPENSATION IMMUNITY FOR ELECTRIC COMPANY BASED ON THE STATUTORY EMPLOYER RELATIONSHIP, WHEN THE CONTRACT WITH THE INJURED VICTIMS’ EMPLOYER DID NOT SHOW THAT IT HAD SUBLET ANY PART OF THE CONTRACT IT HAD ENTERED INTO WITH A THIRD PARTY.
Tampa Electric Co, v. Gansner, 45 Fla. L Weekly D2358 (Fla. 2nd DCA October 16, 2020):
Tampa Electric, a public utility, owned an electrical generating facility in Hillsboro County. The injured victims were employees of Zachry Industrial Inc, an entity with whom Tampa Electric had contracted to provide maintenance work at the electrical generating facility it owned.
When the two workers were significantly injured and sued Tampa Electric, Tampa Electric raised workers’ compensation immunity. For the purposes of §440.10(1)(b), Tampa Electric would be entitled to workers’ compensation immunity as a statutory employer if it were considered a “contractor” that “sublet any part” of its “contract work” to the plantiffs’ employer as the subcontractor. To be considered a contractor, Tampa Electric’s “primary obligation in performing a job or providing a service must arise out of a contract.”
The undisputed facts showed that Tampa Electric had not sublet part of a contract with a third party. Instead, it asserted that there was an implied contractual obligation arising out of the tariff it had with its customers to supply them with electricity.
However, there is not a statutory employer relationship simply because a party enters into a contract with another that contributes to or facilitates work under a separate contract.
Tampa Electric’s “contract work” with its customers under the tariff did not include the maintenance of its electrical generating equipment at its facilities.
Here, Tampa Electric’s obligation to maintain its equipment arose purely out of an administrative regulation, and was not an obligation that it could “sublet” to a third party for the purposes of section §440.10(1)(b) absent a concomitant contractual obligation. As such, the court ruled the plaintiffs’ case could proceed against Tampa Electric because there was no workers’ compensation immunity to protect it.