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Southland Construction12/5/2003
This is the appeal of an order dismissing the claim of Southland Construction, Inc. ["Southland"] to recover attorney's fees and increases in its workers' compensation insurance premiums, which Southland claims resulted from the death of a Southland employee due to the negligence of Peoples Gas System ["Peoples Gas"] in failing to mark a gas line.
Southland sued the defendants below, the Greater Orlando Aviation Authority ["GOAA"] and Peoples Gas on a theory of negligence. The complaint alleged that GOAA and Southland entered into a contract on February 2, 2000, for the construction of drainage modifications and access roads at the Orlando International Airport. On May 9, 2000, a Southland employee breached an unmarked Peoples Gas line with construction equipment, causing a fire that resulted in the death of one Southland employee and the injury of another. Southland alleged it had transmitted an underground utility locate request to GOAA and Peoples Gas prior to the accident and had received an "all clear" from each company. Southland alleged that Peoples Gas owed Southland a duty to notify it of the location of underground utility lines in the area and that Peoples Gas was negligent in failing to do so. Southland claimed that, as a result of the accident, its workers' compensation carrier had to pay substantial benefits to the families of the workers which, in turn, caused Southland's workers' compensation insurance premiums to increase. It further alleged it incurred $6,752.00 in attorneys' fees for the successful defense of an OSHA citation arising out of the accident.
Peoples Gas moved for dismissal of the amended complaint, asserting that, as a matter of law, the claim for increased workers' compensation insurance premiums and attorney's fees were not recoverable because such damages were too remote and unforeseeable. Peoples Gas also asserted that an employer's rights to recover damages under Florida's Workers' Compensation Law is limited to that which is contained in Chapter 440. Finally, as to the OSHA citation claim, they asserted that fees were not compensable because there was no contract or statute authorizing recovery of attorneys' fees. After a hearing on the motion to dismiss, the court dismissed both the claim for attorneys' fees and the claim for the increase in insurance premiums. The trial court explained during the hearing that the damages were too remote as a matter of law to be recoverable by Southland. Southland urges on appeal that the trial court erred. We affirm.
Although there is no Florida case on the issue, courts in other jurisdictions uniformly have found no such entitlement to recovery of workers' compensation insurance premium increases as a matter of law, based on the remoteness and the lack of legal foreseeability of such claims. Fischl v. Paller & Goldstein, 231 Cal. App.3d 1299, 282 Cal. Rptr. 802 (Cal. Ct. App. 1991); RK Constructors, Inc. v. Fusco Corp., 650 A.2d 153, 157 (Conn. 1994); Unique Paint Co. v. Wm. F. Newman Co., 411 S.E.2d 352, 353 (Ga. Ct. App. 1991); Anderson Plasterers v. Meinecke, 543 N.W.2d 612-14 (Iowa 1996); Pro-Staffers, Inc. v. Premier Mfg. Support Serv., Inc., 651 N.W. 2d 811 (Mich. Ct. App. 2002); Northern States Contracting Co. v. Oakes, 253 N.W. 371, 372 (Minn. 1934); Whirley Indus., Inc. v. Segel, 462 A.2d 800, 804 (Pa. Super. Ct. 1983); Canada Dry Bottling Co. v. Mertz, 400 A.2d 186 (Pa. Super. Ct. 1979); Higbie Roth Constr. Co. v. Houston Shell & Concrete, 1 S.W. 3d 808, 812 (Tex. App. 1999).
The Court of Appeals of Texas recently addressed this issue in Higbie Roth Construction Co. v. Houston Shell & Concrete, 1 S.W.3d 808. The Texas court found no negligence cause of action existed, ex
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