Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT TAMPA ELECTRIC COMPANY, ) ) Appellant, ) ) v. ) Case No. 2D19-3091 ) DONALD G. GANSNER and ) STACY GANSNER, individually, and ) as parents and next friends of ) Breanna Gansner and Karsen ) Gansner, minors; and JAMES and ) CHELSEA CARTER, ) ) Appellees. ) ) Opinion filed October 16, 2020. Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Hillsborough County; Ralph C. Stoddard, Judge. Adam D. Griffin and Timothy C. Conley of Lau, Lane, Pieper, Conley & McCreadie, P.A., Tampa, for Appellant. Robert F. Jordan of Jordan Law Firm, PLLC, Lake City, for Appellees. ROTHSTEIN-YOUAKIM, Judge. Tampa Electric Company appeals the nonfinal order denying its motion for summary judgment and determining as a matter of law that it is not entitled to workers' compensation immunity in two lawsuits brought against it. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(v). Because the trial court correctly determined that Tampa Electric is not the statutory employer of either Donald Gansner or James Carter, we affirm. Tampa Electric, a public utility, owns Big Bend Power Station, an electrical generating facility in Hillsborough County. Gansner and Carter are actual employees of Zachry Industrial Inc., an entity with whom Tampa Electric had contracted to provide maintenance work at Big Bend. The underlying lawsuits stem from an accident that occurred at Big Bend on October 24, 2017. On the day of the accident, Gansner and Carter arrived at one of Big Bend's condenser units, Unit 3, to perform maintenance work on the access door of a condenser inlet tunnel. When they reached the access door of the unit, it blew open, releasing a large column of water that struck them. They were injured as a result, and they, along with their spouses and Gansner's children, filed lawsuits against Tampa Electric. Tampa Electric raised an affirmative defense of workers' compensation immunity in each lawsuit, and the two lawsuits were consolidated for pretrial purposes. Shortly after, Tampa Electric filed a consolidated motion for summary judgment on its affirmative defenses that it is entitled to workers' compensation immunity. In that motion, Tampa Electric argued that it is the statutory employer of Gansner and Carter pursuant to section 440.10(1)(b), Florida Statutes (2017). It further asserted that because it is their statutory employer, the exclusivity provision of section 440.11 limits Gansner's and Carter's remedies to workers' compensation benefits, which they had received through Zachry Industrial. The trial court denied the motion in an order -2- explicitly stating that Tampa Electric is not entitled to workers' compensation immunity because it is not the statutory employer of either Gansner or Carter. We review de novo the trial court's order denying Tampa Electric's motion for summary judgment. See Green v. APAC–Fla., Inc., 935 So. 2d 1231, 1233 (Fla. 2d DCA 2006). To be entitled to workers' compensation immunity in this case, Tampa Electric must be the statutory employer of Gansner and Carter pursuant to section 440.10(1)(b), which provides: In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment. For purposes of section 440.10(1)(b), Tampa Electric would be entitled to workers' compensation immunity as Gansner's and Carter's statutory employer if it is considered a "contractor" that "sublet[] any part" of its "contract work" to Zachry Industrial, 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." Sotomayor v. Huntington Broward Assocs. L.P., 697 So. 2d 1006, 1007 (Fla. 4th DCA 1997) (quoting Gator Freightways, Inc. v. Roberts, 550 So. 3d 1117, 1119 (Fla. 1989)). This primary obligation is "an obligation under the prime contract between the contractor and a third party," see id. (quoting Miami Herald Publ'g v. Hatch, 617 So. 2d 380, 383 (Fla. 1st DCA 1993)), which is "sublet" when it is "pass[ed] on to another," Jones v. Fla. Power Corp., 72 So. 2d 285, 289 (Fla. 1954). -3- In this case, the trial court determined that the undisputed material facts did not establish that Tampa Electric had sublet to Zachry Industrial any part of a prime contract it had entered into with a third party. On appeal, Tampa Electric argues, as it did below, that it has an implied contractual obligation to its customers to maintain its electrical generating equipment at Big Bend and that it sublet that obligation to Zachry Industrial. For the reasons set forth below, we reject this argument. In support of its argument that it is a contractor within the meaning of section 440.10(1)(b), Tampa Electric asserts that it has a contractual obligation to its customers to supply them with electricity and that that obligation arises out of its tariff. A tariff is a document setting forth a public utility's services, the rates for those services, and the rules and regulations that govern the utility's relationship with its customers. See Fla. Admin. Code R. 25-6.033(1), (2). A tariff is subject to review and approval by the Public Service Commission, Fla. Admin. Code R. 25-6.033(3), and if approved, it is recognized as a contract between the utility and its customers with the force and effect of law. See Landrum v. Fla. Power & Light Co., 505 So. 2d 552, 554 (Fla. 3d DCA 1987); see also Potts v. Fla. Power & Light Co., 841 So. 2d 671, 672 (Fla. 4th DCA 2003) (concluding that a customer was bound by Florida Power & Light's tariff, which included a limitation of liability clause); cf. Bella Boutique Corp. v. Venezolana Internacional de Aviacion, S.A. (Viasa Airlines), 459 So. 2d 440, 441 (Fla. 3d DCA 1984) (explaining, in an action for damages brought by a company against a shipper for lost cargo, that "[a] validly filed tariff constitutes the contract of carriage between the parties and conclusively and exclusively governs the rights and liabilities between the parties"). -4- Tampa Electric's tariff, which was filed with and approved by the Public Service Commission, is therefore considered a contract between Tampa Electric and its customers. As Tampa Electric points out, section 2.2.2 of the tariff provides that Tampa Electric will "use reasonable diligence at all times to provide continuous service at the agreed nominal voltage." None of the parties dispute that the tariff constitutes a contract between Tampa Electric and its customers and that section 2.2.2 delineates Tampa Electric's contractual obligations to its customers. What the parties dispute, however, is whether Tampa Electric sublet its contractual obligations under that section or any other section of the tariff to Zachry Industrial. The trial court rejected Tampa Electric's argument that it had sublet a contractual obligation under section 2.2.2 to Zachry Industrial because nothing in that section or any other section of the tariff requires Tampa Electric to maintain its electrical generating equipment, much less to maintain its equipment at Big Bend. Tampa Electric argues that was error because such an obligation to its customers may be implied. Specifically, Tampa Electric argues that it undertook an implied contractual obligation to its customers to maintain its electrical generating equipment at Big Bend because the maintenance of such equipment "contributes to the performance" of its express contractual obligation to supply electricity.1 Consequently, it sublet a part of its tariff when it contracted with Zachry Industrial to provide maintenance work at Big Bend. 1Tampa Electric goes so far as to argue, "If the subcontracted work contributes however slightly to fulfilling the prime contract, Section 440.10(1)(b) is satisfied." (Emphasis added.) -5- The obvious problem with Tampa Electric's argument is that section 440.10(1)(b) uses the term "contract work," not "work that contributes to the performance of the contract." Thus, section 440.10(1)(b) does not create statutory employer status whenever a party enters into a contract with another that contributes to or facilitates its work under a separate contract; surely, that could be said of nearly every contract that a business enters into except those for the most incidental of services. Had the legislature intended that such a relationship be sufficient to create statutory employer status, the legislature could easily have stated so in section 440.10(1)(b). See Sotomayor, 697 So. 2d at 1008 ("[T]he legislature could have granted a broader statutory employer immunity by creating statutory employer status in any circumstance in which a business engages a subcontractor to perform a part of the business' regular trade or work." (quoting Rabon v. Inn of Lake City, Inc., 693 So. 2d 1126, 1130 (Fla. 1st DCA 1997))). Tampa Electric's "contract work" with its customers under the tariff does not include the maintenance of its electrical generating equipment at its facilities. Cf. Broward County v. Rodrigues, 686 So. 2d 774, 775 (Fla. 4th DCA 1997) (concluding that the county was the statutory employer of a maintenance worker at the county's wastewater treatment plant where the county had a contractual obligation with municipalities "to operate the plant and supply wastewater collection, treatment, and disposal services to [the municipalities'] customers" (emphasis added)). Not only is there no explicit contractual obligation in the tariff to do so, but section 2.2.2 of the tariff disavows any implied contractual obligation to do so, providing that Tampa Electric shall not be liable to the Customer for any damages arising from . . . the negligence of the Company, its employees, -6- servants or agents, including, but not limited to, damages for complete or partial failure or interruption of service, for initiation of or re-connection of service, for shutdown for repairs or adjustments, for fluctuations in voltage, for delay in providing or in restoring service, or for failure to warn of interruption of service. Its attendant promise in section 2.2.2 to "use reasonable diligence at all times to provide continuous service at the agreed nominal voltage," while laudable, creates no contractual obligation to do so in this case. See, e.g., Restatement (Second) of Contracts § 1 (Am. Law Inst. 1981) ("A contract is a promise or a set of promises for the breach of which the law gives a remedy." (emphasis added)). And Tampa Electric points to no source of such an obligation apart from the tariff. Cf. Delta Air Lines, Inc. v. Cunningham, 658 So. 2d 556, 557 (Fla. 3d DCA 1995) ("[A]s a common carrier Delta has an express and implied contractual obligation to its customers to maintain its equipment properly. . . ." (citing 13 Am. Jur. 2d, Carriers §§ 175, 226 (1964))); cf. also Aerovias Colombianas, LTDA. v. Paiz, 695 So. 2d 822, 823 (Fla. 3d DCA 1997) (explaining that once a contractual obligation to maintain the equipment necessary to carrying out other contractual obligations is established, it does not matter if a particular piece of equipment is currently being used to fulfill those other contractual obligations).2 2Aerovias would seem to preclude the plaintiffs' argument that Tampa Electric had to establish a contractual obligation to maintain equipment specifically at its Big Bend station. See also Rodrigues, 686 So. 2d at 775 ("Although the county's written contracts with the municipalities did not specify that the county was obligated to perform the specific duty being supplied by Shenandoah at the time of the plaintiff's injury (cleaning one of the tanks at the facility), it is clear that such duty was directly related and necessary to the county's fulfilling its contractual obligation." (emphasis added)). Because we conclude that Tampa Electric failed to establish that it had a contractual obligation to maintain any of its equipment, however, we do not reach that argument. -7- Instead, Tampa Electric's obligation to maintain its equipment arises out of a regulation promulgated by the Public Service Commission. See 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 is "safe, efficient, and proper"); see also § 366.05(1)(a), Fla. Stat. (2020) (authorizing the Public Service Commission to adopt "rules and regulations to be observed by each public utility"). Although the failure to maintain its equipment would not give rise to a cause of action for its customers pursuant to the tariff, it would cause Tampa Electric to be in violation of rule 25-6.037. As the trial court observed, Tampa Electric's contract with Zachry Industrial to provide for such maintenance is, therefore, a means by which Tampa Electric complies with the rule. To be sure, we recognize that a party that contracts with another for a service that is subject to an administrative regulation would not be precluded from being considered a statutory employer simply because the service is regulated by the state. See Roberts v. Gator Freightways, Inc., 538 So. 2d 55, 59 (Fla. 1st DCA 1989). That Tampa Electric contracted with Zachry Industrial to perform a service regulated by rule 25-6.037 would not defeat its statutory employer status if that service were also part of its contract work with a third party. But absent such an obligation under the tariff or any other contract, Tampa Electric's obligation to maintain its equipment is one purely imposed by an administrative regulation authorized by statutory law, and thus it does not constitute "contract work" sublet to Zachry Industrial for purposes of section 440.10(1)(b). See Mathis v. Sacred Heart Health Sys., Inc., 187 So. 3d 951, 952 (Fla. -8- 1st DCA 2016) (concluding that the owner of a children's clinic who had contracted with a company to provide cleaning services at the clinic was not the statutory employer of an employee of the cleaning company and rejecting the argument that the clinic owed to its patients an implied contractual obligation to provide cleaning services because the duty to maintain a clean environment arises out of its general duty to exercise reasonable care and not any contractual duty owed to its patients); see also Rabon, 693 So. 2d at 1129 (explaining that a hotel that had contracted with a security company to provide security services was not the statutory employer of a security guard employed by the security company because the hotel did not owe a contractual obligation to its guests to provide security services and instead the duty arose from its general duty to exercise reasonable care); Woods v. Carpet Restorations, Inc., 611 So. 2d 1303, 1304 (Fla. 4th DCA 1992) (concluding that a condominium association was not the statutory employer of an employee of a company the association had contracted with to manage and maintain the property because the association's obligation to manage and maintain did not arise out of a contract and instead was a "purely statutory" obligation). Tampa Electric argues that our court's decision in Green, 935 So. 2d at 1234, nonetheless mandates reversal. In Green, APAC–Florida, Inc. (APAC), "contracted with the Florida Department of Transportation (FDOT) to mill, widen, and resurface a section of a state road." Id. at 1232. APAC then entered into a subcontract with Florida Tank Lines (FTL) to transport liquid asphalt in connection with the project. When Green, one of FTL's employees, was injured while delivering the asphalt to the FDOT job site, he sued APAC, and APAC raised as an affirmative defense that it was Green's statutory employer. Id. at 1232–33. APAC moved for summary judgment on its -9- affirmative defense, arguing that it had sublet to FTL its implicit obligation to provide the necessary asphalt. Id. at 1233. We reversed the trial court's grant of final summary judgment in favor of APAC, holding that summary judgment was improper because genuine issues of material fact remained, including "the nature and scope of any contractual obligation that APAC sublet to FTL." Id. at 1234. In arguing that Green mandates reversal, Tampa Electric latches onto our observation in that case that, "[a]t its core, the central factual dispute is whether there was a sufficient nexus between FTL's services for APAC and the FDOT project to support a finding that APAC was Mr. Green's statutory employer." Id. at 1234. But our observation that a "sufficient nexus" is required does not support the conclusion that Tampa Electric established that requisite "sufficient nexus" in this case. We therefore conclude that Tampa Electric is not the statutory employer of either Gansner or Carter. Although Tampa Electric promises to exercise reasonable diligence to provide power to its customers pursuant to its tariff, nothing in the tariff—or in any other source that it has identified—imposes upon it a contractual obligation to its customers to maintain its electrical generating equipment. Instead, its obligation to maintain its equipment arises purely out of an administrative regulation and thus is not an obligation that it can "sublet" to a third party for purposes of section 440.10(1)(b) absent a concomitant contractual obligation. The trial court, therefore, correctly denied Tampa Electric's motion for summary judgment based on workers' compensation immunity. Affirmed. KHOUZAM, C.J., and LaROSE, J., Concur. - 10 -