841 F.

2d 1062

Juan Larena GARCIA, Plaintiff-Appellant,

v.
PUBLIC HEALTH TRUST OF DADE COUNTY, d/b/a
Jackson Memorial
Hospital, et al., Josefa Vasquez, the University of Miami, a
Florida corporation, d/b/a the University of Miami School of
Medicine, Don Rafael Penalver, M.D., and Iberia Airlines of
Spain, S.A., Defendants-Appellees.
No. 87-5176.

United States Court of Appeals,

Eleventh Circuit.
April 4, 1988.

Marilyn Sher, Chonin & Sher, P.A., Coral Gables, Fla., Joseph C. Segor,
Miami, Fla., for plaintiff-appellant.
Christopher Lynch, Adams, Hunter, Angones, Adams, Adams & McClure,
Miami, Fla., for Donald Rafael Penalver, M.D.
Michael J. Holland, Condon & Forsyth, New York City, Michael K.
McLemore, Kimbrell & Hamann, P.A., Miami, Fla., for Iberia Airlines of
Spain.
Appeal from the United States District Court for the Southern District of
Florida.
Before HATCHETT and EDMONDSON, Circuit Judges, and
MARKEY* , Chief Circuit Judge.
HATCHETT, Circuit Judge:

Applying Florida's choice of law principles, we affirm the district court's ruling
that an action for medical malpractice brought by an employee of a foreign
agency injured in Florida is barred by Florida's Worker's Compensation law.

FACTS
2

Iberia Airlines of Spain employed Juan L. Garcia, the appellant, as a flight

attendant. Iberia Airlines is an agency of the Spanish government and is
incorporated under the laws of Spain. On August 3, 1984, during a flight
layover in Miami, Florida, Garcia was "mugged" and beaten. Garcia sustained
injury to his left wrist and received treatment at Jackson Memorial Hospital
(Public Health Trust of Dade County). Dr. Penalver, also an employee of Iberia,
treated Garcia's injury. When Garcia returned to his home in Spain, he
experienced complications with the injury and his personal physician advised
him that the treatment for the injury was improper. Garcia received 100-percent
of his salary and medical expenses through the Spanish workmen's
compensation system.

PROCEDURAL HISTORY
3

In the Florida state courts at Miami, Garcia brought a medical malpractice

action against Iberia Airlines and its employee, Dr. Penalver. He also brought a
negligence action against Jackson Memorial Hospital (Public Health Trust of
Dade County) and the University of Miami. Iberia Airlines removed the action
to district court based upon the provisions of the Foreign Sovereign Immunity
Act of 1976. Iberia Airlines is a foreign state within the meaning of the Act.1
Iberia and Penalver moved for summary judgment on the ground that Garcia,
an Iberia employee, is not entitled to bring a tort suit in Florida against his
employer and co-employee.

Contending that Spanish law would permit a lawsuit in Florida notwithstanding

the fact that he received compensation in Spain, Garcia also moved for partial
summary judgment. The district court granted summary judgment in favor of
Iberia and Penalver holding that Florida law bars tort recovery when one is
entitled to full compensation for injuries under the Florida Worker's
Compensation Act. Noting that Florida has the "most significant relationship"
to the parties, the district court then remanded Garcia's suit against Public
Health Trust and the University of Miami for further proceedings in state court,
657 F.Supp. 99.

CONTENTIONS AND ISSUES

5

On appeal, Garcia asserts that the district court erred in ruling that Florida had
the "most significant relationship" regarding the question of employer
immunity under Florida's Worker's Compensation Act. Garcia also contends
that the district court erred in determining that the appellees are entitled to

immunity under Florida's Worker's Compensation Act.

6

The issues are: (1) whether the district court applied the correct choice of law
rule; and (2) whether the district court erred in holding that Florida's Worker's
Compensation Act barred Garcia from recovery.

I.
A. Choice of Law
7

In Acme Circus Operating Co., Inc. v. Kuperstock, 711 F.2d 1538 (11th
Cir.1983), this court applied choice of law principles and articulated a step-bystep analysis. This court noted:

8 first step in choice of law analysis is to ascertain the nature of the problem
The
involved, i.e., is the specific issue at hand a problem of law of contracts, torts,
property, etc. The second step is to determine what choice of law rule the state ...
applies to that type of legal issue. The third step is to apply the proper choice of law
rule to the instant facts and thereby conclude which [jurisdiction's] substantive law
applies.
9

Kuperstock, 711 F.2d at 1540.

10

The parties agree that Florida's choice of law rules apply because Florida is the
site where the creation of liability originated. Klaxon Co. v. Stentor Electric
Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Coral
Gables Imported Motorcars v. Fiat Motors, 673 F.2d 1234, 1238 (11th
Cir.1982). Nevertheless, the parties disagree on how the Florida choice of law
rules should resolve the dispute.

11

In step one, the question is whether the action arises in contract or tort. Garcia
contends that this is a contract action. The district court held for the appellees
ruling that Garcia's claim is grounded in tort. We agree. Although the parties
entered into the contract for employment in Spain, this action is filed in tort.
Garcia sought compensation for medical malpractice allegedly committed in
Florida. Additionally, Garcia alleged in his amended complaint that Iberia and
Penalver were negligent in failing to render proper medical attention. The
district court correctly noted that "[i]t is in Florida where the cause of the injury
and the alleged negligent treatment occurred." Given the facts and pleadings, it
is clear that Garcia filed a tort action.

12

Second, we must determine what choice of law principle Florida courts apply to

12

13

Second, we must determine what choice of law principle Florida courts apply to
issues of tort liability. In Bishop v. Florida Specialty Paint Co., 389 So.2d 999
(Fla.1980), the Florida Supreme Court abandoned the traditional lex loci delicti
rule (law where injury occurred prevails) in favor of the modern "most
significant relationship" test as set forth in the Restatement (Second) of Conflict
of Laws Secs. 145-146 (1971).
Section 145 of the Restatement sets forth the general principles in determining
the applicable law under the "most significant relationship" analysis. Section
145 states:

Sec. 145 The General Principle

14

1. The rights and liability of the parties with respect to an issue in tort are
determined by the local law of the state which, with respect to that issue, has
the most significant relationship to the occurrence and the parties under the
principles stated in Sec. 6. [Emphasis added.]

15

2. Contacts to be taken into account in applying the principles of Sec. 6 to

determine the law applicable to an issue include:

(a) the place where the injury occurred,

16
(b) the place where the conduct causing the injury occurred,
17
18 the domicile, residence, nationality, place of incorporation and place of business
(c)
of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
19
20
These
contacts ought to be evaluated according to their relative importance with
respect to the particular issue.
21

Section 146 of the Restatement (Second) of Conflict of Laws provides: Sec.

146 Personal Injuries

22 an action for a personal injury, the local law of the state where the injury occurred
In
determines the rights and liabilities of the parties, unless, with respect to the
particular issue, some other state has a more significant relationship under the
principles stated in Sec. 6 to the occurrence and the parties, in which event the local
law of the other state will be applied.2
23

The Bishop court reasoned that "[o]ther factors may combine to outweigh the

place of injury as a controlling consideration, making the determination of

applicable law a less mechanical, and more rational, process." Bishop, 389
So.2d at 1001. Several jurisdictions have abandoned the lex loci doctrine for
the more flexible modern approach to conflict of laws analysis.3 Florida
indisputably was the site of the injury in this case; therefore, the "most
significant relationship" test should be applied. Bishop, 389 So.2d at 1001; see
also, Hertz Corp. v. Piccolo, 453 So.2d 12 (Fla.1984) (where Florida Supreme
Court reaffirmed the rationale set forth in Bishop ).
B. Application of State Law
24

The final step in the Kuperstock analysis is to apply the "most significant
relationship" test to the facts in this case and decide which jurisdiction's
substantive law applies. The district court correctly ruled that Florida has the
"most significant relationship" to the occurrence and the parties. Garcia argues
that Spain has the most significant relationship between the parties. He argues
that: (1) Spain has an ownership interest in Iberia Airlines; (2) Spain is the
residence of Iberia Airlines; (3) the employment relationship is centered in
Spain; and (4) Spain is where the flight originated. Although Garcia articulates
several contacts with Spain, the alleged medical malpractice occurred in
Florida. Garcia was mugged and injured during a flight layover in Miami,
Florida. Dr. Penalver, an Iberia employee, treated Garcia for his injuries in
Florida, thereby creating a doctor-patient relationship in Florida. Dr. Penalver is
domiciled in Florida, and the alleged medical malpractice is centered in Florida.
See generally Restatement (Second) of Conflict of Laws Secs. 145-146 (1971).

25

Moreover, Florida has a significant interest in maintaining compliance with its

worker's compensation laws. Florida intended its worker's compensation system
to strike a balance between compensating injured workers and limiting the
liability of employers for accidents. Section 440.09 of the Florida Statutes
provides in pertinent part that:

26
Where
an accident happens while the employee is employed elsewhere than in this
state, which would entitle him or his dependents to compensation if it had happened
in this state, the employee or his dependents shall be entitled to compensation....
However, if an employee shall receive compensation or damages under the laws of
any other state, nothing herein contained shall be construed so as to permit a total
compensation for the same injury greater than is provided herein.
27

Fla.Stat.Ann. Sec. 440.09 (West 1981). Florida workmen's compensation law

provides that liability of the employer shall be exclusive and in place of all
other liability to any third-party tortfeasor and to the employee. See

Fla.Stat.Ann. Sec. 440.10-.11 (West 1981); Seaboard Coastline Railroad Co. v.

Smith, 359 So.2d 427, 428 (Fla.1978). Although Spanish law allows recovery
in tort actions, Florida law does not permit an employee receiving worker's
compensation benefits to institute an action in tort against his employer or his
co-employee. Fla.Stat.Ann. Sec. 440.11 (West 1981). Florida has articulated a
strong public policy with respect to employer immunity for work related
injuries. Because Spanish law allows suit against employers, Spanish law
would contravene strong public policy of the forum state. See Restatement
(Second) of Conflict of Laws Sec. 6 (West 1971). This rationale was clearly set
forth in Urda v. Pan Am World Airways, 211 F.2d 713 (5th Cir.1954). In Urda,
the appellant's husband, an employee with Pan American, died in an aircraft
disaster in Brazil. Brazilian law permitted suit against employers, however, Pan
American was subject to the workmen's compensation law of Florida. The court
held that "[w]ith the policy of the State of Florida expressed so positively in its
statutes, it seems clear to us that any cause of action created by the law of
Brazil cannot be enforced in Florida contrary to the public policy of the forum."
Urda, 211 F.2d at 715; see Pacific Employer's Insurance Co. v. Industrial
Accident Commission of California, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940
(1939) (where state was not required to enforce the worker's compensation law
of a foreign state).
28

In this case, Garcia received 100-percent compensation for his injuries under
the Spanish worker's compensation system. As the district court noted, "
[Garcia] is barred from seeking a tort recovery when he has already availed
himself of the benefits obtainable under Spanish worker's compensation law.
The fact that Spanish law would permit such a double recovery is of no
significance...." See Fla.Stat.Ann. Secs. 440.09 and 440.11 (West 1981); Urda,
211 F.2d at 715. The application of Spanish law would directly circumvent the
established policy in Florida regarding employer immunity.4 Given the facts
and policy reasons presented in this case, the district court was correct in its
application of Florida's choice of law rules.

II.
29

Garcia also argues for the first time on appeal that Iberia and Penalver are not
entitled to immunity under Florida Statute Sec. 440.11. Essentially, Garcia
contends that an employer is immune from suit under Florida's worker's
compensation law only if the employer secures payment of compensation as
required by the statute. See Fla.Stat.Ann. Sec. 440.11 (West 1981). We need
not decide this question on appeal. Garcia did not raise the issue in the district
court. "Failure to raise an issue, objection or theory of relief to the trial court is
generally fatal." Denis v. Liberty Mutual Insurance Co., 791 F.2d 846, 849

(11th Cir.1986). "[F]actual assertions that defeat a summary judgment cannot

be presented for the first time to appellate court, and only those matters
properly before district court for summary judgment consideration are subject
to appellate review." Denis, 791 F.2d at 849 (citing DeBardeleben v.
Cummings, 453 F.2d 320 (5th Cir.1972) and Garner v. Pearson, 732 F.2d 850
(11th Cir.1984)). Nevertheless, appellate courts "will consider an issue not
raised in district court if it involves a pure question of law, and if refusal to
consider it would result in a miscarriage of justice." Roofing and Sheet Metal
Services, Inc. v. LaQuinta Motor Inns, Inc., 689 F.2d 982, 990 (11th Cir.1982).
In this case, the question of whether Iberia secured payment of compensation
under the Worker's Compensation Act is purely a factual question. Thus,
Garcia's appeal on this issue is barred.
30

Likewise, we need not decide whether the Spanish statute of limitations bars
Garcia's cause of action. In Bates v. Cook, 509 So.2d 1112 (Fla.1987), the
Florida Supreme Court held that the significant relationship test should be
employed to decide conflict questions concerning statute of limitations as well
as issues of substantive law. Bates, 509 So.2d at 1114-15. Because we find that
Florida has the "most significant relationship" between the parties, the question
of whether Spain's statute of limitations applies is irrelevant.

31

Accordingly, the grant of summary judgment in favor of Iberia Airlines and

Penalver is affirmed.

32

AFFIRMED.

Honorable Howard T. Markey, Chief U.S. Circuit Judge for the Federal Circuit,
sitting by designation

Act of October 21, 1976, Pub.L. No. 94-583, 90 Stat. 2891 (1976), codified at
28 U.S.C. Secs. 1330, 1332(a)(2)-1332(a)(4), 1391(f), 1441(d), and 1602-1611;
see also Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371 (5th
Cir.1980)

Section 6 of the Restatement (Second) emphasizes several factors to consider in

choice of law determinations. Some of these factors are: (a) needs of interstate
and international systems; (b) policies of the forum; (c) policies of other
interested states; (d) protection of justified expectations; and (e) certainty and
predictability of result

Several state courts have rejected the place of injury rule and adopted one of

several "multiple factors" theories. Gutierrez v. Collins, 583 S.W.2d 312

(Tex.1979); First National Bank v. Rostek, 182 Colo. 437, 514 P.2d 314
(1973); Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970); and Armstrong
v. Armstrong, 441 P.2d 699 (Alaska 1968)
4

Although Florida has accepted several provisions of the Restatement (Second)

of Conflicts, it is unclear whether Florida has adopted section 184. Section 184
provides in pertinent part:
Recovery for tort or wrongful death will not be permitted in any state if the
defendant is declared immune from such liability by the workmen's
compensation statute ... and under which
(a) the plaintiff has obtained an award for the injury, or
(b) the plaintiff could obtain an award for the injury, if this is the state (1)
where the injury occurred ...
If Florida follows this section, clearly Garcia would be precluded from recovery
under Spanish law. Nevertheless, we are satisfied that statutory authority and
the rationale set forth in Urda indicate Florida's interest in maintaining
employer immunity under its worker's compensation system.