IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA KELLEY COOK and ELENA COOK, his wife, v. Petitioners, SECOND DCA CASE NO.: 2D VAN BEBBER & ASSOCIATES, INC., Respondent. / PETITIONER S JURISDICTIONAL BRIEF On review from the District Court of Appeals, Second District, State of Florida. FL Bar No: SPN:

2 TABLE OF CONTENTS Table of Citations Statement of the Case and Facts Summary of Argument The decision of the Second District Court of Appeals in this case expressly and directly conflicts with the decision of the Court in Percy v. Falcon Fabricators, Inc., 584 So.2d 17 (Fla 3 rd DCA 1991). Argument Conclusion Certificate of Service Certificate of Compliance TABLE OF CITATIONS 1. Van Bebber & Associates, Inc., v. Cook, 29 Fla. L. Weekly D 230 (Fla. Dist. CT. App. 2D DIST. January 16, 2004). 2. Percy v. Falcon Fabricators, Inc., 584 So.2d 17 (Fla 3 rd DCA 1991). STATEMENT OF THE CASE AND FACTS Petitioner Plaintiff overcame a motion for Summary Judgment filed by the Respondent/Defendant, General Contractor. Respondent/Defendant/Contractor had filed a Motion for Summary Judgment for employer immunity under Florida Statute , which was denied by the lower tribunal. The 2

3 Respondent/Defendant/ Contractor appealed and Summary Judgment was awarded in its favor. SUMMARY OF ARGUMENT The decision of the Second District Court of Appeals in this case expressly and directly conflicts with the decision of the Court in Percy v. Falcon Fabricators, Inc., 584 So.2d 17 (Fla 3 rd DCA 1991). ARGUMENT The decision of the lower tribunal, trial court, was reversed by the Second DCA in part because the court held that the dual persona exception is set forth in Percy v. Falcon Fabricators, Inc., 584 So.2d 17 (Fla. 3 DCA 1991) did not apply. The District Court distinguished Percy. Although Percy dealt with a successor corporation of a manufacturer, the case sub judice dealt with the alleged unauthorized design of plans by the Respondent/Defendant/Contractor on a job site when the injured party, Mr. Cook was employed by a separate employer. The accident which injured Mr. Cook was the result of a design, which was in place prior to the existence of Mr. Cook s contract with the General Contractor. Percy held that an employer may become a third person, vulnerable to tort suit by an employee, if, and only if, he possesses a second persona so completely independent from and unrelated to a status as employer that by established standards, the law recognizes it as a separate legal person. 3

4 Under the dual persona doctrine, the employer is acting as a second persona unrelated to a status as employer, that confers upon him obligations independent imposed upon him as an employer. The Plaintiff alleged that the Respondent/ Defendant/Contractor in performing design services was acting illegally and in such a diverse and unauthorized role, that he should not be awarded immunity. CONCLUSION This Court has discretionary jurisdiction to review the decision below, and the Court should exercise that jurisdiction to consider the merits of petitioner s argument. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to: John A. Guyton, III, Esquire, 109 N. Brush Street, 5 th Floor, Tampa, Florida 33602; Geoffrey D. Ringer, Esquire, 14 East Washington Street, Suite 200, Orlando, Florida 32802; Randall P. Mueller, Esquire, 712 S. Oregon Avenue, Tampa, Florida 33606, and William G. Hyland, Esquire, Law Office of Jack D. Evans, PO Box 24317, Tampa, FL on this 14 th day of April FL Bar No: /SPN:

5 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Brief complies with the font requirements and Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. FL Bar No: SPN: