Willis A. Smith Construction, Inc. v. Keathley, the Board of Trustees of the University of South Florida

── Willis A. Smith Construction, Inc. v. Keathley, the Board of Trustees of the University of South Florida ── Court: District Court of Appeal of Florida Date: April 24, 2026 Category: General DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT WILLIS A. SMITH CONSTRUCTION, INC., a corporation, Appellant, v. DEBRA KEATHLEY as personal representative of the Estate of Phillip Scott Keathley a/k/a Scott Keathley, deceased, and THE BOARD OF TRUSTEES OF THE UNIVERSITY OF SOUTH FLORIDA d/b/a UNIVERSITY OF SOUTH FLORIDA, Appellees. No. 2D2025-1900 April 24, 2026 Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pinellas County; Thane Covert, Senior Circuit Judge. Michael R. D'Lugo and Andrew Willers of Wicker Smith O'Hara McCoy & Ford, P.A., Orlando, for Appellant. Shea T. Moxon and Thomas J. Seider of Brannock Berman & Seider, Tampa; and Matthew M. Thomas of Graves Thomas Rotunda Injury Law Group, Vero Beach, for Appellee Keathley. No appearance for remaining Appellee. SLEET, Judge. Willis A. Smith Construction, Inc. (WASC), appeals from the trial court's nonfinal order granting partial summary judgment in favor of Debra Keathley as personal representative of the Estate of Philip S. Keathley on WASC's worker's compensation immunity affirmative defense raised in Ms. Keathley's negligence action.1 We affirm. Pursuant to a written contract, WASC is a continuing service provider for the University of South Florida (USF). Under that contract, WASC was restoring a structure on USF's Sarasota Campus known as the John C. Williams House. WASC issued to West Shore Construction an open invitation to bid on subcontracting elements of the project. West Shore and Mr. Keathley, as part owner of West Shore, accepted the invitation to bid. Mr. Keathley was subsequently present on the job site to prepare West Shore's bid for installation of hurricane screens at Williams House. While there, Mr. Keathley fell from a fourth-floor balcony, causing his death. His estate sued both WASC and USF. WASC claimed workers' compensation immunity as an affirmative defense, arguing that Mr. Keathley was its statutory employee and that therefore it was immune from tort liability. The parties filed cross-motions for summary judgment as to this affirmative defense. WASC argued in its motion that it was "contractually required to perform work for USF" and that the work included providing a price proposal for the Williams House project. WASC maintained that it "sublet a portion of this work to Westshore," namely providing the price proposal for the installation of hurricane screens. According to WASC, because "Keathley was working within the course and scope of his direct employment with" West Shore at the time of the accident, WASC "was Keathley's statutory employer." 1 The University of South Florida is also a named defendant in the underlying litigation but is not a party to this appeal. 2  In her summary judgment motion, Ms. Keathley maintained that Mr. Keathley was at all times exclusively the employee of West Shore and that West Shore never had a contractual relationship with WASC. She pointed out that "Westshore was never hired for the Project, was under no obligation to submit a bid for the Project, and never did submit a bid for the Project." Furthermore, she argued that "there was no contractual privity in place, no compensation was paid, and WASC never sublet any portion of [its] work" to West Shore. She therefore maintained that WASC was not Mr. Keathley's statutory employer and was "not entitled to workers' compensation immunity under the undisputed facts of [the] case." The trial court agreed with Ms. Keathley. Following a hearing, the court entered a written order granting partial summary judgment in Ms. Keathley's favor as to WASC's fourteenth affirmative defense. The court noted that it was undisputed