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Florida Fifth DCA rules that trial court erred in granting summary judgment in wrongful death case on a ground not substantively raised by defendants

On August 28, 2020, in Rossman v. Wallick, et al., No. 5D19-1644, the Florida Fifth DCA reversed a trial court summary judgment entered in favor of the defendants in a wrongful death case.  The decedent was employed by the defendant company and was killed in a workplace accident.  His personal representative sued both the corporate employer and its owner for having allegedly negligently caused the decedent’s death.  The defendants maintained that since the decedent was injured in the course and scope of his employment for the company and the company had not committed an intentional tort, the decedent’s estate was limited to making a claim for worker’s compensation benefits.  See § 440.11(1), Fla. Stat. (2015). For his part, the owner claimed to be protected from liability based on the worker’s compensation immunity afforded to employees acting in a managerial capacity. The plaintiff countered that the gross-negligence exception to fellow-employee immunity applied to the company through operation of the doctrine of respondeat superior.  The trial court concluded that a “composite of the facts” did not establish gross negligence on the part of the owner and dismissed the case. The Fifth DCA ruled that since the trial court granted summary judgment based on the issue of gross negligence, which was not addressed by the defense in their motion and was only raised by the plaintiff in response to the summary judgment motion, summary judgment was improperly granted on a ground not substantively raised by the defendants.  The Fifth DCA cited in support Ambrogio v. McQuire, 247 So. 3d 73, 75–77 (Fla. 2d DCA 2018).