Florida: Injured Worker May Not Rely on Affidavit to Contradict Her Own Prior Testimony to Defeat Summary Judgment Motion

A Florida appellate court affirmed a trial court’s decision granting summary judgment in favor of a defendant that claimed it was immune from suit under the exclusive remedy provisions of the Florida Workers’ Compensation Act because the plaintiff was its borrowed employee. The plaintiff, who was employed by Pacesetter, a help supply services company that for a fee supplied workers to various firms and entities, sustained injuries to her finger in a workplace accident at the defendant’s facility. She received workers’ compensation benefits from Pacesetter, but filed the civil action against defendant, to whom she had been assigned for approximately two years. In a deposition, plaintiff testified that that she was under the extensive control of defendant and its employees, who trained and instructed her daily. Two days before the summary judgment hearing, plaintiff filed an affidavit and an errata sheet that materially conflicted with some of the statements she had made during her deposition. Based on the changes to her testimony, plaintiff argued that there was a genuine dispute over material facts as to whether defendant possessed the requisite degree of control over her to establish defendant’s immunity under the common law “borrowed servant” doctrine. The trial court excluded the affidavit and the appellate court affirmed, holding that a party may not rely on an affidavit that contradicts or repudiates prior deposition testimony simply to defeat a motion for summary judgment.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

LexisNexis Online Subscribers: Citations below link to Lexis 

See Baker v. Airguide Manufacturing, LLC, 2014 Fla. App. LEXIS 17627 (Oct. 29, 2014) 

See generally Larson’s Workers’ Compensation Law, § 67.05 

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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