Disability Law

Second DCA: Employee Not Estopped From Pursuing Tort Action Against Putative Employer

By David A. McCranie, Esq.

Zeeuw v. BFI Waste Systems of North America, Inc., decided by the Second District Court of Appeal on 12/31/2008, illustrates how litigation can arise when the documentation in an employee leasing situation is unclear.  Zeeuw had previously worked for BFI as a leased employee of Spartan Staffing, but it was unclear on the date of his accident whether he remained a leased employee or whether he worked directly for BFI.  He therefore filed petitions for benefits against both entities, but both BFI and Spartan Staffing denied that he was their employee on the date of the accident.  Zeeuw therefore dismissed his petition against BFI and settled with Spartan Staffing, with the stipulation that Spartan Staffing was not thereby admitting that Zeeuw was its employee on the date of the accident.

Zeeuw thereafter filed a tort action against BFI, but the trial court granted BFI's motion for summary judgment on the grounds that on the date of the accident Zeeuw was BFI's "borrowed servant" and BFI was therefore entitled to immunity from tort liability by virtue of §440.11(2), Fla. Stat.

On appeal, the Second District concluded that there remained genuine issues of material fact as to whether on the date of the accident Zeeuw was employed by Spartan Staffing or by BFI.  The court also rejected BFI's argument that Zeeuw was estopped from pursuing a tort claim against them.  The court reasoned that (1) Zeeuw's earlier workers' compensation claim against BFI was not "successfully pursued" - a prerequisite for judicial estoppel - and that (2) there was no "mutuality of parties" because BFI was not a party to Zeeuw's settlement with Spartan Staffing.

I confess that the court's decision is a little confusing to me.  It seems to me that on the date of the accident Zeeuw was either (1) working directly for BFI (in which case BFI would be entitled to immunity from tort liability) or (2) working for Spartan Staffing (in which case BFI would have still been entitled to immunity because Zeeuw would have been BFI's "borrowed servant."  But it also sounds to me as though this whole dispute could have been avoided if BFI and Spartan Staffing simply had made it plain at all times which entity was actually employing Zeeuw.

Full post as published by Florida Workers’ Compensation Law Blog on January 05, 2009 (boomark / email).