"Dual Persona" Doctrine Does Not Permit Third Party's Contribution Claim Against Employer
The "dual persona" doctrine, discussed only sparingly in Florida judicial decisions, is an exception to the "exclusive remedy" provision which bars most tort claims by an employee against his employer. The doctrine permits an employee to pursue a tort claim against his employer where the corporate employer merges with a corporate third-party tortfeasor after the accident which caused the employee's injuries. For example, in Percy v. Falcon Fabricators, Inc., 584 So.2d 17 (Fla. 3d DCA 1991), one of the few Florida decisions to address the doctrine, an employee was allowed to sue her employer when, after the manufacture of the defective product which injured the employee, the employer merged with the manufacturer of the product.
In Griffin, Inc. v. Loomis, Fargo & Co., however, decided on 4/23/2008, the Second DCA refused to apply the doctrine to permit a claim for contribution by a third-party tortfeasor against the employer's successor corporation. The facts of the case are a little complicated, but here goes:
An employee (unnamed in the opinion) worked for Wells Fargo, which later merged with Loomis. The employee continued to work for Loomis after the merger with no break in service. Before the merger, Wells Fargo contracted with Griffin, Inc., to convert one of its vans into an armored vehicle. After the merger, the unnamed employee was injured when the van crashed. He received workers’ compensation benefits from Loomis and later sued Griffin, Inc., for negligence and strict liability based on the defective design of the van. Griffin then interpleaded Loomis seeking contribution from them, claiming that Wells Fargo, Loomis’ predecessor, was partially responsible for the van’s defective design.
Loomis argued that it was entitled to workers’ compensation immunity under §440.11(1), Fla. Stat. [See Seaboard Coast Line R.R. Co. v. Smith, 359 So.2d 427 (Fla. 1978)(holding that §440.11(1) prohibits a claim for contribution by a third-party tortfeasor against the injured worker’s employer)]. Griffin countered that the “dual persona” doctrine permits its claim to go forward because Loomis’ liability is based on its status as successor in interest to Wells Fargo, the alleged co-tortfeasor.
The Second DCA disagreed, however, and affirmed the summary judgment entered in favor of Loomis by the trial court. The court pointed out that in this case, the injured worker actually worked for both Wells Fargo (before the merger) and Loomis (after the merger). Therefore, Wells Fargo would have been immune from tort liability to the employee, and Loomis, as Wells Fargo’s successor, would have inherited Wells Fargo’s defenses.
