TULA MOUCHA, APPELLANT,
v.
BURGER KING CORPORATION, ETC., ET AL., APPELLEE
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The court held that worker's compensation immunity, an affirmative defense, cannot be raised by a motion to dismiss when the complaint does not contain allegations regarding worker's compensation coverage.
Plaintiff, an employee, sued her employer and another company for negligence after an assault. The trial court dismissed the complaint, finding worker…
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WATSON, R.O., Associate Judge.
Appellant, Plaintiff, Tula Moucha, an employee of Appellee, Defendant, Dav-Gar Restaurants, Inc., and Defendant, St. Pe-tersburg Beverage Company, Inc., sued Defendant, Dav-Gar and Defendant, St. Pe-tersburg Beverage, on four counts of negligence following an assault on Plaintiff. The trial court granted Defendants’ motion to dismiss Plaintiff’s amended complaint on the ground that Plaintiff’s exclusive remedy is a claim for worker’s compensation benefits.
Section 440.11(1), Florida Statutes (1979) provides that an employers’ liability under Section 440.10, Florida Statutes (1979) is exclusive. Defendant is immune from tort liability to Plaintiff for her inju-nes if those injuries arose out of and in the course of Plaintiff’s employment. Sullivan v. Liberty Mutual Insurance Company, 367 So. 2d 658 (Fla. 4th DCA 1979), cert. den. 378 So. 2d 350 (Fla.1979).
Worker’s compensation immunity is an affirmative defense and ordinarily is not properly raised by a motion to dismiss the complaint. Sullivan v. Liberty Mutual Insurance Company, 367 So. 2d 658 (Fla. 4th DCA 1979). However, an affirmative defense appearing on the face of the complaint may be raised by a motion to dismiss the complaint. Rule 1.110(d), Florida Rules of Civil Procedure. Davis v. Sun First Nat. Bank of Orlando, 408 So. 2d 608 (Fla. 5th DCA 1981).
The amended complaint does not contain any allegations regarding worker’s compensation insurance coverage. The exclusionary provision of Section 440.11, is an affirmative defense and cannot be raised by a motion to dismiss. Walker v. I.T.D. Industries, Inc., 437 So. 2d 230 (Fla. 2nd DCA 1983); Gonzalez v. Addi Co., 444 So. 2d 1132 (Fla. 4th DCA 1984).
The order dismissing Appellant’s complaint is reversed.
ORFINGER, C.J., and COWART, J., concur.
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Citator
Cited By
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Gen. Cinema Beverages OF Miami, Inc. v. Mortimer, 689 So. 2d 276 (Fla. 3d DCA 1995)…affirmative defense and ordinarily is not properly raised by a motion to dismiss the complaint. However, an affirmative defense appearing on the face of the complaint may be raised by a motion to dismiss the complaint. Moucha v. Burger King Corp., 450 So. 2d 335, 336 (Fla. 5th DCA 1984) (citations omitted); see also Eiler v. Camp Dresser & McKee, Inc., 542 So. 2d 441, 442 (Fla. 5th DCA 1989).3 In the unusual circumstances of the present case, the legal issue raised by the employer clearly appears on the fa…
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Eiler v. Camp Dresser & McKee, Inc., 542 So. 2d 441 (Fla. 5th DCA 1989)…on 440.11 of the Workers’ Compensation Act is an affirmative defense which cannot be raised by a motion to dismiss unless the allegations of a prior pleading in the case demonstrate the existence of such a defense. Moncha v. Burger King Corporation, 450 So. 2d 335 (Fla. 5th DCA 1984). See also Walker v. ITD Industries, Inc., 437 So. 2d 230 (Fla. 2d DCA 1983). Here, Eiler’s complaint alleges a cause of action against appellees in negligence. The complaint does not contain any allegations concerning the Worke…
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Wilfranc Eugene and Marie L. Eugene v. Prestcon, Inc., 528 So. 2d 1218 (Fla. 4th DCA 1988)…granting the dismissal. Walker v. I.T.D. Industries, Inc., 437 So. 2d 230 (Fla. 2d DCA 1983); Wenner v. Foster, 336 So. 2d 1248 (Fla. 4th DCA 1976); Chaires v. North Florida Nat. Bank, 432 So. 2d 183 (Fla. 1st DCA 1983); Moncha v. Burger King Corp., 450 So. 2d 335 (Fla. 5th DCA 1984); East Naples Water Systems, Inc. v. Board of County Commissioners of Collier County, 457 So. 2d 1057 (Fla. 2d DCA 1984); Humber v. Ross, 452 So. 2d 1086 (Fla. 4th DCA 1984). Accordingly, the order appealed is reversed and the c…
Authorities Cited
- Sullivan v. Liberty Mut. Ins. Co., 367 So. 2d 658 (Fla. 4th DCA 1979)
- Davis v. SUN First Nat'l Bank OF Orlando, 408 So. 2d 608 (Fla. 5th DCA 1981)
- Carroso v. State, 437 So. 2d 230 (Fla. 2d DCA 1983)
- Walker v. I.T.D. Indus., Inc., 437 So. 2d 230 (Fla. 2d DCA 1983)
- Refugio Gonzalez v. Addi Co., 444 So. 2d 1132 (Fla. 4th DCA 1984)
- The Hills OF Inverrary Condos., Inc. v. Slachter, 444 So. 2d 1132 (Fla. 4th DCA 1984)