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

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 that "West Shore never submitted a bid" for

the hurricane screen installation subcontract and "was never hired by

[WASC] or USF to install hurricane screens or to do any other part of the

restoration work." The court concluded that while WASC did establish

that it had a contractual obligation to USF and that as part of that

contractual obligation, it was required to prepare and submit a cost

proposal for the Williams House restoration project, it did not establish

that it sublet any part of that contractual obligation to West Shore. The

court specifically stated that "[t]he communications between [WASC] and

West Shore . . . do not show that [WASC] ever requested West Shore to

assume part of its obligation for preparing a price proposal for USF" or

"that West Shore ever agreed to do so."

On appeal, WASC argues that this ruling was erroneous and

maintains that because West Shore accepted WASC's invitation to bid,

3

Mr. Keathley "was doing work in furtherance of the interests of [WASC]

and USF when the accident occurred" and that therefore it is immune

from tort liability. We disagree.

Under section 440.10, [Florida Statutes (2010),] every

employer is legally obligated to secure the payment of medical

and disability benefits for any employee who is injured at

work. § 440.10(1)(a). In exchange, the employer's liability for

those benefits is made "exclusive and in place of all other

liability . . . of such employer . . . to the employee." §

440.11(1). As a result, "employers who provide workers'

compensation benefits . . . are immune from tort liability."

Cent. Fla. Lumber Unlimited, Inc. v. Qaqish, 12 So. 3d 766,

769 (Fla. 2d DCA 2009).

Slora v. Sun 'N Fun Fly-In, Inc., 173 So. 3d 1099, 1102 (Fla. 2d DCA

2015) (footnote omitted).

"The obligation to secure payment of workers' compensation

benefits and [the] concomitant immunity from tort liability extends not

only to direct employers but also to certain 'statutory employers.' " Id.

(quoting Qaqish, 12 So. 3d at 769). Section 440.10(1)(b), Florida

Statutes (2023), provides as follows:

In case a contractor sublets any part or parts of his or her

contract work to a subcontractor or subcontractors, all of the

employees of such contractor and subcontractor or

subcontractors engaged on such contract work shall be

deemed to be employed in one and the same business or

establishment, and the contractor shall be liable for, and

shall secure, the payment of compensation to all such

employees, except to employees of a subcontractor who has

secured such payment.

By this statutory language, "to be immune from tort liability as a

contractor, a defendant's 'primary obligation in performing a job or

providing a service must arise out of a contract.' " Slora, 173 So. 3d at

1102 (quoting Derogatis v. Fawcett Mem'l Hosp., 892 So. 2d 1079, 1083

(Fla. 2d DCA 2004)). Additionally, the contractor must show that it "then

4

'delegated or sublet to a subcontractor' " a part of that contractual

obligation. Id. In the instant case, it is only this second requirement

that is at issue. While it is undisputed that WASC had a contract with

USF for the restoration of Williams House, Ms. Keathley does not agree

that it sublet part of its contractual obligation to West Shore.

In considering this question, we start with the meaning of sublet.

"[I]n the context in which it is used [in section 440.10(1)(b)], the effect of

subletting is to pass on to another an obligation under a contract for

which the person so 'subletting' is primarily obligated." Cuero v. Ryland

Grp., Inc., 849 So. 2d 326, 328 (Fla. 2d DCA 2003) (quoting Jones v. Fla.

Power Corp., 72 So. 2d 285, 289 (Fla. 1954)).

WASC maintains that its contractual obligation to USF included

the preparation of a price proposal for the entire Williams House project

and that it sublet to West Shore the preparation of the price proposal for

the installation of hurricane screens portion of the project. WASC points

to nothing more than the fact that West Shore accepted its invitation to

submit a bid as proof that West Shore had contractually obligated itself

to prepare a price proposal for USF. But "[f]or there to be an enforceable

contract, 'there must be an offer, an acceptance, consideration, and

sufficient specification of terms so that the obligations involved can be

ascertained.' " W. Constr., Inc. v. Fla. Blacktop, Inc., 88 So. 3d 301, 304

(Fla. 4th DCA 2012) (quoting Savoca Masonry Co. v. Homes & Son Constr.

Co., 542 P.2d 817, 819 (Ariz. 1975)). None of those elements are present

in the instant case in a way that would establish a subcontract between

WASC and West Shore.

WASC's invitation to bid indicated the project name and address,

that the owner was USF, and that bids were due by April 12, 2023. A

section titled Summary stated that "[t]his project consists of but is not

5

limited to: reroofing of the entire house, finish carpentry, painting,

structural repairs, shoring, lightning protection demolition and re-

installation, etc." The invitation also indicated that a "Non-Mandatory

Pre-Bid" meeting would be held "at the job site" and that "all

subcontractors are required, prior to bidding, to become familiar with the

project location and existing site conditions, as they pertain to your

scope of work" and gave directions on how to schedule a visit. Such is

the entire contents of the invitation to bid.

It did not specify a particular part of the project on which the

recipient would be bidding and did not guarantee the recipient the job. It

provided no consideration to the recipient other than the right to submit

a bid on the Williams House project. And nowhere in the invitation did it

indicate that the recipient's bid would be used as part of WASC's

contractually required price proposal to USF. This clearly was not a

proposed contract containing "sufficient specification of terms so that"

West Shore could ascertain the obligations involved. See id.; see also

William A. Berbusse, Jr., Inc. v. N. Broward Hosp. Dist., 117 So. 2d 550,

552 (Fla. 2d DCA 1960) ("The invitation to bid did not constitute an offer of

a contract but only the solicitation or inducement to make offers, and it

imposed of itself no liability.").

Furthermore, Mr. Keathley's accident occurred while he was

preparing the bid, and West Shore subsequently opted not to submit a

bid. Florida courts have held that even where a bid is submitted, that

fact alone does not create a contract. See W. Constr., 88 So. 3d at 304

("A subcontractor's bid is 'nothing more than an offer to perform the

subcontract under specified terms.' The bid does not evolve into a

contract until it is accepted by the general contractor . . . ." (citation

omitted) (quoting Corbin-Dykes Elec. Co. v. Burr, 500 P.2d 632, 633 (Ariz.

6

1972))); see also Hoon v. Pate Constr. Co., 607 So. 2d 423, 426 (Fla. 4th

DCA 1992) ("[N]o contract is formed when a bid is made pursuant to an

invitation to bid."). Certainly if submission of a bid does not create a

contract, accepting an invitation to submit a bid cannot do so.

Because the undisputed facts of this case do not support a

conclusion that WASC passed on to West Shore a portion of its

contractual obligation to prepare a price proposal for USF's Williams

House project, the trial court did not err in granting partial summary

judgment in favor of Ms. Keathley.

Affirmed.

NORTHCUTT and LABRIT, JJ., Concur.

Opinion subject to revision prior to official publication.

7