throbber
Case 2:19-cv-00072-SPC-NPM Document 187 Filed 11/23/20 Page 1 of 17 PageID 2160
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`FORT MYERS DIVISION
`
`
`ESTATE OF GERALDINE F.
`JENNINGS, ROBERT J.
`JENNINGS, CHERYL FAZO and
`KIM S. JENNINGS,
`
`
`
`v.
`
`GULFSHORE PRIVATE HOME
`CARE, LLC,
`
`
`
`Plaintiffs,
`
`Defendant/Third
`Party Plaintiff
`
`Case No.: 2:19-cv-72-FtM-38NPM
`
`
`CRIS-CAROL SAMUELS,
`
`Third Party Defendant.
`
`_________________________________ /
`
`OPINION AND ORDER1
`
`
`
`Before the Court is Defendant Gulfshore Private Home Care, LLC’s
`
`Fourth Motion for Summary Judgment (Doc. 155), Plaintiffs’ response in
`
`opposition (Doc. 161), and Gulfshore’s Reply (Doc. 170).2 The Court grants the
`
`motion.
`
`
`1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using hyperlinks,
`the Court does not endorse, recommend, approve, or guarantee any third parties or the services
`or products they provide, nor does it have any agreements with them. The Court is also not
`responsible for a hyperlink’s availability and functionality, and a failed hyperlink does not affect
`this Order.
`2 Gulfshore has requested oral argument on its motion. (Doc. 165). After reviewing the record
`and the parties’ memorandums of law, the Court finds that it has sufficient information to decide
`the motion without additional oral argument. M.D.Fla.L.R. 3.01(j).
`
`

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`Case 2:19-cv-00072-SPC-NPM Document 187 Filed 11/23/20 Page 2 of 17 PageID 2161
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`BACKGROUND
`
`
`
`This is a wrongful death action arising under Florida law. Gulfshore is
`
`a licensed Florida nurse registry that refers home healthcare professionals to
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`elderly and disabled clients. (Doc. 88-3 at 3). Gulfshore hires the home
`
`healthcare professionals as independent contractors. (Doc. 154-1, 30:12-15;
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`31:13-15; 112:1; 113:16-17). It uses software to send out potential referrals to
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`its registered independent contractors. (Doc. 154, 140:15-19).
`
`Third-Party Defendant Cris-Carol Samuels is a certified nursing
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`assistant who registered with Gulfshore to receive client referrals in 2016.
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`(Doc. 153-1, 50:3-11). In March 2017, Gulfshore assigned Samuels to transport
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`Antoinette Janich (“the Client”). (Doc. 53 at ¶¶ 11-12; Doc. 88-1 at ¶¶ 11-12).
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`While transporting her, Samuels drove onto the sidewalk and fatally struck
`
`Geraldine F. Jennings. (Doc. 53 at ¶ 15; 53-1; Doc. 88-1 at ¶ 15). This suit
`
`ensued.
`
`Plaintiffs are Jennings’ estate, husband, and daughter. They sue
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`Gulfshore for wrongful death based on three theories of negligence. (Doc. 53).
`
`In Count I, Plaintiffs claim Samuels was an agent for, or in a joint venture
`
`with, Gulfshore. (Doc. 53 at 4-5). In Count II, Plaintiffs claim “Gulfshore was
`
`negligent in selecting, hiring, retaining, instructing, and/or supervising”
`
`Samuels. (Doc. 53 at 5). In Count III, Plaintiffs claim Gulfshore is vicariously
`
`2
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`

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`Case 2:19-cv-00072-SPC-NPM Document 187 Filed 11/23/20 Page 3 of 17 PageID 2162
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`liable for Samuels’ negligence because it breached its nondelegable duty to
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`ensure safe transportation services. (Doc. 53 at 6-7).
`
`Gulfshore moves for summary judgment as to the Estate, husband, and
`
`surviving daughters. (Doc. 150). It argues summary judgment is proper
`
`because Samuels was an independent contractor and Gulfshore is not liable for
`
`her actions.
`
`After briefing on the motion for summary judgment finished, and nearly
`
`five months after discovery ended, Plaintiffs moved to compel Gulfshore to
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`authenticate documents purportedly published on its website. (Doc. 172). Two
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`subsequent related motions are pending. (Doc. 175; Doc. 182). The Court
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`denies the requests as procedurally improper. Discovery is over. Plaintiffs
`
`could have requested this material during discovery but did not. As Gulfshore
`
`points out, Plaintiffs chose not to ask about the material at the 30(b)(6)
`
`deposition. It is not appropriate for Plaintiffs to be filing discovery motions as
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`the Court considers a summary judgment motion. And even if the Court
`
`considered these materials, it cannot discern from a brief review how they help
`
`Plaintiffs’ case.3
`
`LEGAL STANDARD
`
`
`3 To wit, one webpage lists “transporting clients to social activities and appointments” as a
`service nursing assistants provide clients, seeming to contradict Plaintiffs’ argument that
`driving clients is impermissible for a nurse registry. See Doc. 110-1 at 5.
`
`3
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`Summary judgment is proper only if there are no disputed issues of
`
`material fact and the moving party is entitled to judgment as a matter of law.
`
`See Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
`
`(1986). The moving party bears the initial burden of stating the basis for its
`
`motion and identifying those portions of the record demonstrating the absence
`
`of genuine issues of material fact. See O’Ferrell v. United States, 253 F.3d
`
`1257, 1265 (11th Cir. 2001). An issue is genuine if there is sufficient evidence
`
`so that a reasonable jury could return a verdict for either party. See Anderson
`
`v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
`
`When opposing a motion for summary judgment, the nonmoving party
`
`must show the existence of specific facts in the record that create a genuine
`
`issue for trial. See id. at 256. The Court should view the evidence and the
`
`inferences that may be reasonably drawn from the evidence in the light most
`
`favorable to the nonmoving party. See Burton v. City of Belle Glade, 178 F.3d
`
`1175, 1187 (11th Cir. 1999) (citation omitted). A party opposing a properly
`
`supported motion for summary judgment may not rest on mere allegations or
`
`denials and “must do more than simply show that there is some metaphysical
`
`doubt as to the material facts.” Matushita Elec. Indus. Co. v. Zenith Radio
`
`Corp., 475 U.S. 574, 586 (1986) (citation omitted). Failure to show evidence of
`
`any essential element is fatal to the claim and the Court should grant summary
`
`judgment. See Celotex, 477 U.S. at 322-23. But if reasonable minds could find
`
`4
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`

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`a genuine issue of material fact, then summary judgment should be denied.
`
`See Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1532 (11th Cir.
`
`1992).
`
`DISCUSSION
`
`
`
`In Florida, a claim for wrongful death is “created and limited by Florida's
`
`Wrongful Death Act.” Cinghina v. Racik, 647 So.2d 289, 290 (Fla. 4th DCA
`
`1994); Estate of McCall v. United States, 134 So.3d 894, 915 (Fla. 2014). It
`
`provides a right of action “[w]hen the death of a person is caused by the
`
`wrongful act, negligence, default, or breach of contract or warranty of any
`
`person . . . and the event would have entitled the person injured to maintain
`
`an action and recover damages if death had not ensued.” Fla. Stat. § 768.19;
`
`Plaintiffs allege wrongful death based on three negligence theories. To state a
`
`claim for negligence in a wrongful death action, a plaintiff must allege: “(1) the
`
`existence of a legal duty owed to the decedent, (2) breach of that duty, (3) legal
`
`or proximate cause of death was that breach, and (4) consequential damages.”
`
`Jenkins v. W.L. Roberts, Inc., 851 So.2d 781, 783 (Fla. 1st DCA 2003).
`
`The primary disagreement among the parties is whether Samuels is an
`
`independent contractor. If she is, Plaintiffs will face an uphill battle ascribing
`
`liability to Gulfshore because Florida follows the general rule that the
`
`employer of an independent contractor is not liable for the contractor’s
`
`negligence because the employer has no control over how the work is done.
`
`5
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`Case 2:19-cv-00072-SPC-NPM Document 187 Filed 11/23/20 Page 6 of 17 PageID 2165
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`McCall v. Alabama Bruno’s, Inc., 647 So.2d 175, 177 (Dist. Ct. App. Fla. 1994)
`
`(quoting Restatement (Second) of Torts § 409). But it also recognizes
`
`exceptions to the general rule which may generally be divided into three
`
`categories: 1) negligence in selecting, instructing, or supervising the
`
`contractor; 2) non-delegable duties arising out of some relation toward the
`
`public or the particular plaintiff; and 3) work which is specially, peculiarly, or
`
`‘inherently’ dangerous. Id.
`
`In Florida, home health services—defined as health and medical services
`
`furnished by an organization to an individual in the individual’s home—are
`
`governed by the Home Health Services Act, Fla. Stat. §§ 400.461 to 400.5185.
`
`Gulfshore maintains a nurse registry under Florida law. (Doc. 155 at 3; Doc.
`
`160 at 3). A nurse registry procures healthcare-related contracts for registered
`
`nurses, licensed practical nurses, certified nursing assistants, home health
`
`aides, companions or homemakers, who are compensated by fees as
`
`independent contractors, including, but not limited to, contracts for the
`
`provision of services to patients. See Fla. Stat. 400.462(21)(emphasis added).
`
`Samuels is a certified nursing assistant. (Doc. 153-1 at 42; Doc. 108).
`
`Section 400.506(6)(d) of the Florida Statutes lays out the following
`
`employment relationship:
`
`A registered nurse, licensed practical nurse, certified nursing assistant,
`companion or homemaker, or home health aide referred for contract under this
`chapter by a nurse registry is deemed an independent contractor and not
`
`6
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`

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`Case 2:19-cv-00072-SPC-NPM Document 187 Filed 11/23/20 Page 7 of 17 PageID 2166
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`an employee of the nurse registry under any chapter regardless of the
`obligations imposed on a nurse registry under this chapter or chapter
`408.
`
` (emphasis added).
`
`Under the Home Health Services Act, Samuels is an independent
`
`contractor. The question of an employer/employee relationship is generally a
`
`question for the trier of fact. Pate v. Gulmore, 647 So.2d 235, 236 (Fla. 1st Dist.
`
`Ct. App. Fla 1994). Perhaps that is why Plaintiffs urge the Court to apply the
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`seven-factor test laid out in Cantor v. Cochran, 184 So.2d 173 (Fla. 1966) to
`
`determine whether an employer-employee relationship exists. But sometimes,
`
`the only reasonable view of the evidence compels the conclusion that an
`
`employment relationship did not exist. If so, a court may determine the issue
`
`as a matter of law. See Johnson v. Gourmet Gardens, Inc., 827 So.2d 1020,
`
`1020 (2d Dist. Ct. App. Fla. 2002). Here, as a matter of law, Florida classifies
`
`caregivers referred by nurse registries as independent contractors. Samuels
`
`acknowledges she was an independent contractor. (Doc. 153-1, 48:24-25). The
`
`Court need not delve any deeper into the relationship.4
`
`
`4 Even if the Florida legislature did not classify Samuels as an independent contractor,
`application of the Cantor test would still compel the Court to find Samuels was an
`independent contractor. Gulfshore exercised no control over Samuels’ work. Samuels is
`licensed by the state and received no training or supervision from Gulfshore as to the means
`and methods of her work. Samuels understands she is an independent contractor and was
`paid directly by the client. And she used her own tools and materials, including driving her
`own car at the time of the accident.
`
`7
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`Case 2:19-cv-00072-SPC-NPM Document 187 Filed 11/23/20 Page 8 of 17 PageID 2167
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`Grasping at straws, Plaintiffs present five arguments to attempt to
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`convince the Court that Samuels was not an independent contractor.
`
`First, Plaintiffs argue Gulfshore fraudulently identifies as a nurse
`
`registry while it operates a non-emergency medical transportation business.
`
`Though Plaintiffs concede Gulfshore is a nurse registry, they try to muddy the
`
`water by arguing it is impermissible for a nurse registry to provide
`
`transportation. But this assertion is not rooted in fact. A Certified Nursing
`
`Assistant provides Activities of Daily Living and Instrumental Activities of
`
`Daily Living custodial care services, one of which is transportation. (Doc. 107-
`
`1 at 6). The independent contractors and the client may agree to
`
`transportation services. (Doc. 154, 91:1-20). And as Gulfshore points out,
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`Florida Administrative Code 59A-18.009(2)(b)
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`includes among
`
`the
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`responsibilities of a “companion” the responsibility “to provide escort services
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`such as taking the patient or client to the health care provider.” Plaintiffs
`
`provide no evidence to support their assertion. Instead, based solely on one
`
`driving event, Plaintiffs insinuate Gulfshore is a transportation business and
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`makes providing transportation a core business activity.
`
` Incidental
`
`transportation provided by the caregiver does not convert a nurse registry into
`
`a transportation company.
`
`Second, Plaintiffs contend the Home Health Services Act does not apply
`
`because by driving a client, Gulfshore referred a nursing assistant to help a
`
`8
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`client in an activity “outside of what is permitted by Florida law.” But under
`
`the statutory
`
`framework, a nurse registry can provide occasional
`
`transportation services. Here, the client requested a nursing assistant to
`
`assist with her custodial care. (Doc. 107-1 at 6). Transportation is a custodial
`
`care service and incidental to the overall care services normally provided by a
`
`nursing assistant. (Doc. 107-1 at 6). In addition, Section 400.506(6)(b) permits
`
`a nursing assistant to assist with “physical transfer.” The Home Health
`
`Services Act applies.
`
`Third, Plaintiffs argue the independent contractor rule should not apply
`
`because Geraldine Jennings was an innocent bystander. This argument is a
`
`nonstarter. If Plaintiffs want to recover from Gulfshore for Geraldine
`
`Jennings’ death, they must show Gulfshore violated a duty of care owed to
`
`Jennings. Central to that analysis is the relationship between Gulfshore and
`
`Samuels. No doubt this was a tragic accident. But a tragedy does not mean
`
`those seeking justice can circumvent well-established legal principles.
`
`
`
`Fourth, regarding the argument Samuels had to drive the client (Doc.
`
`160 at 4), it appears Samuels discovered she had to transport the client after
`
`she had accepted the assignment, unusual because she typically knew what an
`
`assignment entailed before accepting it. This does not mean she was
`
`Gulfshore’s employee. There is no evidence Samuels had to transport the
`
`client. To the contrary, one of Gulfshore’s owners testified if an independent
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`9
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`contractor shows up to a job and the services being requested differ from the
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`description provided in the text or email, it is solely within the independent
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`contractor’s discretion whether to perform the services. (Doc. 154-1, 142:8-14).
`
`
`
`Fifth, Plaintiffs claim the agreement for referral services shows Samuels
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`was an employee because Gulfshore exercised control over the performance of
`
`her work. They point to a single subsection informing Samuels that Gulfshore
`
`could terminate the agreement to support this argument. But the fact
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`Gulfshore retained the right to end the independent contractor relationship
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`does not mean it retained or exercised control over the way Samuels performed
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`her work. Plaintiffs present no evidence Gulfshore retained any control over
`
`the means of the job after referring the client to Samuels. Instead, the
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`agreement simply lays out that Gulfshore can stop allowing Samuels to use its
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`service for referrals.
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`Because Samuels is an independent contractor, Plaintiffs must establish
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`an exception to the general rule to hold Gulfshore liable. The Court will
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`examine the three counts of the amended complaint to see if Gulfshore meets
`
`its burden of proof.
`
`Before examining each count separately, the Court notes that Plaintiffs
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`rely heavily on evidence the Court ruled inadmissible. Plaintiffs use Dr.
`
`Joseph Rubino’s testimony to advance their argument that Gulfshore violated
`
`its duty to Jennings. The Court, however, has twice considered the
`
`10
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`Case 2:19-cv-00072-SPC-NPM Document 187 Filed 11/23/20 Page 11 of 17 PageID 2170
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`admissibility of Dr. Rubino’s testimony and ruled it inadmissible. (Doc. 139;
`
`Doc. 151). It will not find his opinions admissible now. And Plaintiffs use an
`
`expert report (Doc. 114-1) dated after the deadline for submission of expert
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`reports that will not be considered.
`
`Likewise, Plaintiffs mention the Florida Highway Report and
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`Gulfshore’s liability insurance coverage. (Doc. 160 at 18; Doc. 160 at 8). The
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`Court has ruled both items inadmissible. (Doc. 138; Doc. 140).
`
`A. Count I
`
`Plaintiffs claim Samuels was in a joint venture with Gulfshore. But the
`
`evidence establishes there was no joint venture. “A joint venture is created
`
`when two or more persons combine their property and/or their time to conduct
`
`a particular line of trade or business deal.” See Kislak v. Kreedian, 95 So. 2d
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`510, 515 (Fla. 1957). Plaintiffs have adduced no evidence of shared ownership,
`
`shared returns and risks, or shared governance. As discussed, the Florida
`
`legislature defines the relationship between the caregivers and a nurse
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`registry as an employer-independent contractor relationship. And the
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`agreement between the parties lays out an employer-independent contractor
`
`relationship. It states, “[Samuels] hereby engages Registry to inform
`
`Caregiver about potential Clients that [Gulfshore]…determines might be of
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`interest to Caregiver.” (Doc. 108 at 7). Gulfshore connects clients with
`
`caregivers, and Samuels used Gulfshore to connect with potential clients.
`
`11
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`Case 2:19-cv-00072-SPC-NPM Document 187 Filed 11/23/20 Page 12 of 17 PageID 2171
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`There is no joint venture. Gulfshore is thus entitled to summary judgment on
`
`Count I.
`
`B. Count II
`
`Plaintiffs claim “Gulfshore was negligent in selecting, hiring, retaining,
`
`instructing, and/or supervising” Samuels. If Gulfshore was negligent in this
`
`way, Plaintiffs could recover from Gulfshore.
`
`Plaintiffs, however, did not negligently supervise or train Samuels. The
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`Home Health Services Act delineates the duties and obligations of Florida’s
`
`nurse registries. The subsection provides:
`
`A nurse registry may not monitor, supervise, manage, or train a
`registered nurse, licensed practical nurse, certified nursing assistant,
`companion or homemaker, or home health aide referred for contract
`under this chapter.
`
`
`Fla. Stat. § 400.506(19). Under Florida law, as a licensed nurse registry,
`
`Gulfshore may only refer independent contractor care providers and may not
`
`monitor, supervise, manage, or train the care provider. (Doc. 107-1 at 3). Not
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`only Gulfshore did have no duty to instruct or supervise Samuels, it could not
`
`under Florida law. Thus, as a matter of law, it cannot be liable for negligent
`
`supervision or training of Samuels.
`
`Nor was Gulfshore negligent in hiring or retaining Samuels. Plaintiffs
`
`claim Gulfshore breached its duty to properly vet Samuels but fail to adduce
`
`admissible evidence supporting that claim. On the other hand, Gulfshore
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`12
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`Case 2:19-cv-00072-SPC-NPM Document 187 Filed 11/23/20 Page 13 of 17 PageID 2172
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`presents evidence establishing it fulfilled its duty under Florida law. To work
`
`as an independent contractor for a nurse registry, a person must pass a
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`background check conducted by the Florida Department of Law Enforcement.
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`(Doc. 107-1 at 4); see also Fla. Stat. § 400.506(9). The Department takes and
`
`forwards the person’s fingerprints to the FBI for a national criminal history
`
`record check. (Doc. 107-1 at 4). The state, not the nurse registry, determines
`
`whether the caregiver is eligible. (Doc. 107-1 at 4). Samuels’s independent
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`contractor file shows Gulfshore properly verified her credentials and conducted
`
`a background check in compliance with Florida law. (Doc. 107-1 at 4). Thus,
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`Gulfshore fulfilled its duty and was not negligent in hiring or retaining
`
`Samuels. Gulfshore is entitled to summary judgment on Count Two.
`
`As Gulfshore points out, Plaintiffs cite inapplicable cases. Suarez v.
`
`Gonzalez, 820 So. 2d 342, 345-46 (Dist. Ct. App. Fla. 2002) holds that a landlord
`
`can be liable for the tortious actions of an independent contractor if the
`
`landlord was negligent in hiring him. Gulfshore was not negligent in hiring or
`
`selecting Samuels. McCall v. Alabama Bruno’s Inc., 647 So. 2d 175 (Dist. Ct.
`
`App. Fla. 1994) involved a premises liability action and discusses a property
`
`owner’s non-delegable duties toward invitees. The case does not pertain.
`
`C. Count III
`
`Plaintiffs claim operating a vehicle for commercial purposes on the
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`public highways is inherently dangerous and that Gulfshore should be liable
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`13
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`because it did not properly vet Samuels for the ability to provide transportation
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`services. A party who hires an independent contractor may still be liable if a
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`nondelegable duty is involved. Typically, a nondelegable duty arises when, for
`
`policy reasons, the employer cannot shift the responsibility for the proper
`
`conduct of the work to the contractor. Carrasquillo v. Holiday Carpet Services,
`
`Inc., 615 So.2d 862, 863 (Fla. Dist. Ct. App. 1993)(citing Restatement (Second)
`
`of Torts §§ 416-26).
`
`Plaintiffs fail to specify the nondelegable duty.5 Still, because of the
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`danger allegedly involved in driving, Plaintiffs appear to contend a more
`
`stringent duty to vet applies than the background check required by the Home
`
`Health Services Act. But Plaintiffs adduce no admissible evidence showing
`
`that a more stringent background check applies. If Plaintiffs find this duty
`
`outside the Home Health Services Act, the Court points out the Home Health
`
`Services Act applies and Gulfshore complied with the provisions of the Act.
`
`Gulfshore meets its burden of showing it ran a proper background check and
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`verified Samuels’ credentials.
`
`Nor do Plaintiffs point to any Florida statute showing the duty to drive
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`safely is nondelegable. As discussed, the Home Health Services Act allows a
`
`nursing assistant to drive a client. Gulfshore contracts out the performance of
`
`
`5 In the amended complaint, Plaintiffs plead “Gulfshore breached its nondelegable duty for
`the protection of Geraldine’s widower and daughters.” (Doc. 53 at 7). The duty owed to the
`Jennings family is the same duty owed to any member of the public.
`
`14
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`Case 2:19-cv-00072-SPC-NPM Document 187 Filed 11/23/20 Page 15 of 17 PageID 2174
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`the client’s requested assistance—after Gulfshore verifies the background and
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`refers the nursing assistant, it is no longer liable for any negligence by the
`
`nursing assistant in helping the client. Gulfshore meets its burden of proof by
`
`showing Florida law does not impose a nondelegable duty on nurse registries
`
`for the negligence of independent contractor nursing assistants.
`
`Seeking to find a duty breached by Gulfshore, Plaintiffs claim Gulfshore
`
`“failed to comply with CFR Sec 37.171 or Sec 37.713.”6 Yet these regulations
`
`do not apply. CFR Sec. 37.171 and Sec. 37.713 are federal regulations
`
`requiring private entities that operate fixed route or demand responsive
`
`transportation services (such as Uber and Lyft) to avoid disparately treating
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`disabled customers and properly train drivers to do so. See 49 CFR §§ 37.171,
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`37.173. There is no evidence the client was disabled, and Gulfshore neither
`
`operates a fixed route system nor provides responsive transportation services.
`
`Gulfshore is entitled to summary judgment on Count III: it meets its
`
`burden of proof by adducing evidence showing it complied with its duties before
`
`referring Samuels to drive the client.
`
`CONCLUSION
`
`
`
`This litigation arises from a tragedy. The Court empathizes with
`
`Jennings’ husband and daughters and appreciates the magnitude of the loss.
`
`
`6 This alleged failure comes from an inadmissible opinion of Dr. Rubino.
`
`15
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`Case 2:19-cv-00072-SPC-NPM Document 187 Filed 11/23/20 Page 16 of 17 PageID 2175
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`The Court understands they want justice and to hold accountable those whose
`
`actions caused their loved one’s death. But there is no evidence Gulfshore
`
`violated the duty of care it owed to Jennings. Samuels was an independent
`
`contractor who worked with clients referred by Gulfshore. There was no joint
`
`venture. Gulfshore ran the required background checks before referring
`
`Jennings to clients. Under Florida law, it could not monitor or supervise her
`
`work. The Home Health Services Act permits a nursing assistant to drive a
`
`client, and Gulfshore fulfilled its legal duty before referring Samuels to the
`
`client. Plaintiffs present no admissible evidence supporting their claims. The
`
`Court concludes Gulfshore was not negligent and bears no legal responsibility
`
`for Jennings’ tragic death. Gulfshore is entitled to summary judgment on all
`
`counts.
`
`
`
`
`
`Accordingly, it is now
`
`ORDERED:
`
`1. Defendant Gulfshore Private Home Care, LLC’s Fourth Motion for
`
`Summary Judgment (Doc. 155) is GRANTED.
`
`2. The Amended Complaint (Doc. 53) is DISMISSED with prejudice
`
`3. The Clerk shall enter judgment accordingly, terminate all remaining
`
`deadlines and motions, and close the file.
`
`
`
`
`
`16
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`Case 2:19-cv-00072-SPC-NPM Document 187 Filed 11/23/20 Page 17 of 17 PageID 2176
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`DONE and ORDERED in Fort Myers, Florida, on November 23, 2020.
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`Copies: All Parties of Record.
`
`
`
`17
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