Chavarria v. Intergro Inc et al

Filing 83

ORDER granting 52 --motion to dismiss; denying as moot 67 --motion for partial summary judgment; granting 69 --motion for partial summary judgment; directing the clerk to ENTER JUDGMENT for Intergro, Inc., Timothy Dolan, and Felix Renta and against Carmen Elena Monteilh Chavarria on both counts and to CLOSE the case. Signed by Judge Steven D. Merryday on 3/15/2019. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CARMEN ELENA MONTEILH
CHAVARRIA,
Plaintiff,
v.

CASE NO. 8:17-cv-2229-T-23AEP

INTERGRO, INC., et al.,
Defendants.
____________________________________/

ORDER
Carmen Elena Monteilh Chavarria sues (Doc. 49) Intergro, her former
employer; Timothy Dolan, Intergro’s owner; and Felix Renta, Intergro’s chief
financial officer. In Count I, Chavarria alleges that the defendants negligently
selected a whitewater rafting trip as a company “team-building exercise” and
negligently equipped Chavarria for the rafting trip. In Count II, Chavarria alleges
that Intergro breached Chavarria’s employment contract by failing to pay severance
compensation required by a Honduran labor statute. Intergro1 moves (Doc. 52)
to dismiss Count II under Rule 12(b)(6), Federal Rules of Civil Procedure, and the
defendants move (Doc. 69) for summary judgment on Count I. Chavarria opposes

1

Although Dolan and Renta remain defendants in Chavarria’s negligence claim, the July 16
order dismisses Dolan and Renta from Chavarria’s breach of contract claim. (Doc. 48 at 6–8)

(Docs. 56, 70) both motions and moves (Doc. 67) for summary judgment on
Count II. Also, the parties appeared for a hearing on February 12, 2019.
BACKGROUND
The proper inquiry under Rule 12(b)(6), Federal Rules of Civil Procedure, is
whether the complaint’s allegations of fact, assumed true and construed in the light
most favorable to the plaintiff, state a claim for relief. Grossman v. Nationsbank, N.A.,
225 F.3d 1228, 1231 (11th Cir. 2000). Accordingly, to resolve Intergro’s motion to
dismiss, the “background” section of this order includes only the facts alleged in the
complaint.
Chavarria, a Honduran national, contracted with Intergro, a Florida
corporation, to provide accounting services in La Lima, Honduras. Chavarria alleges
that Intergro arranged a whitewater rafting trip as part of an employee “teambuilding exercise.” Soon after the rafting trip, doctors allegedly discovered a small
stone lodged in Chavarria’s eye. Chavarria’s condition resulted in a series of
surgeries, after which she received a diagnosis of 75% vision loss in her right eye.
More than a year after the trip, Intergro terminated Chavarria’s employment.
Suing “[u]nder Florida [c]ommon [l]aw” (Doc. 1 at 8, 10), Chavarria’s original
complaint alleged that “Honduran law requires the payment of certain benefits upon
termination of employment”; that Intergro terminated Chavarria’s employment; and
that Intergro — by failing to pay “certain benefits” — breached the employment
contract. (Doc. 1 at 8–10) The defendants moved (Doc. 13) for a more definite
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statement, and Chavarria permissively amended (Doc. 15) the complaint. The
amended complaint was almost identical to the original complaint, but Chavarria
removed Spanish-language attachments — including the employment contract —
and removed from her allegations every mention of those attachments.
In April 2018, almost six months after the amended complaint, Chavarria
moved to “establish[] Honduran Law as controlling all of [Chavarria’s] claims.”
(Doc. 39 at 7) A July 16, 2018 order (Doc. 48) concludes that Chavarria “waived
her right to assert that Honduran law governs her claims” because Chavarria had
repeatedly alleged that Florida common law governed her claims. Consequently, the
July 16 order directs Chavarria to amend the complaint to clarify the allegation that
“Intergro breached the contract by failing to pay [Chavarria] the benefits that were
due under same pursuant to Honduran law.”
In the second amended complaint (Doc. 49), Chavarria alleges that the parties
formed an employment contract “under Honduran law” (Doc. 49 at ¶ 30); that the
parties contracted for an indefinite time (Doc. 49 at ¶ 44); that the contract
contravened Article 120, of the Honduran Labor Code2 by failing to provide for
severance compensation (Doc. 49 at ¶¶ 31, 34); and that the operation of Honduran
law “included” in the contract a term that required severance compensation.

2

According to the certified translation, Article 120, Honduran Labor Code, states: “If
the contract of employment for an indefinite period concludes due to unjustified dismissal . . . or
another [cause] other than the will of the worker, the employer shall pay him a severance assistance
. . . .” (Doc. 49-10 at 12)

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(Doc. 49 at ¶ 37) Further, Chavarria alleges that Intergro terminated her
employment (Doc. 49 at ¶ 45) and materially breached Chavarria’s employment
contract by failing to pay Chavarria the required severance compensation. (Doc. 49
at ¶ 41)
DISCUSSION
Intergro’s Motion to Dismiss Count II (Breach of Contract
Under Florida Law)
The parties dispute the effect of the July 16 order. (Doc. 48 at 2) Chavarria
argues that the July 16 order obligates her to state a claim under the contract and that
the contract, if construed to “include[]” “missing implied terms and conditions that
are required under Honduran law,” entitles her to relief. (Doc. 56 at 6–7) Intergro
argues that the July 16 order bars any claim that alludes in any manner to Honduran
law. (Doc. 52 at 5)
The introduction of Chavarria’s original complaint stated:
This is an action for personal injury brought under Florida Stat.
§768.041 - §768.81 et seq. (“Negligence”), for the Intentional Infliction
of Emotion Distress brought under Florida common law (“IIED”),
and for breach of contract pursuant to non-payment of employment
termination benefits under Florida common law.

(Doc. 1 at ¶ 1)
After the defendants moved for a more definite statement, Chavarria
permissively amended the complaint. The introduction of Chavarria’s amended
complaint stated:

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This is an action for personal injury brought under Florida Stat.
§768.041 - §768.81 et seq. (“Negligence”), for the Intentional Infliction
of Emotion Distress brought under Florida common law (“IIED”),
and for breach of contract pursuant to non-payment of employment
termination benefits under Florida common law.”

(Doc. 15 at ¶ 1)
Chavarria’s complaints state specifically that the claims alleged are based on
Florida law: a negligence claim based on Florida tort law and a breach of contract
claim based on Florida contract law. Accordingly, the July 16 order concludes that
Chavarria “waived her right to assert that Honduran law governs her claims” because
she had repeatedly alleged that Florida common law governed her claims.
In the introduction, Chavarria’s second amended complaint states:
This is an action for personal injury brought under Florida Stat.
§768.041 - §768.81 et seq. (“Negligence”) and for breach of contract
pursuant to non-payment of employment termination benefits under
Florida common law.

(Doc. 49 at ¶ 1)
Although the July 16 order bars Chavarria from renouncing her consistent
reliance on Florida law as the basis for her claims, the July 16 order says nothing to
prohibit Chavarria from establishing that Honduran law inserts into her employment
contract a term originating in a Honduran statute and requiring severance
compensation. In other words, the July 16 order confirms that Chavarria waived a
claim that Honduran law — not Florida common law — governs her claim. But the
July 16 order leaves available a claim, based on Florida contract law, for breach of

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a contract term originating in a Honduran statute and inserted into the contract by
Honduran law. Chavarria is free to establish that Honduran law inserted into her
employment contract a term that requires severance compensation. If the contract
contains a term requiring severance compensation and if the term was breached,
Chavarria can allege a breach of contract governed by Florida law, which is the claim
Chavarria has pleaded (three times).
An analogy between the Fair Labor Standards Act in the United States and
Article 120 of the Honduran Labor Code effectively illustrates Chavarria’s pleading
quandary. If an employer in the United States, for example, fails to pay overtime,
the aggrieved employee can sue the employer for a violation of the overtime
provision of the FLSA. The employee does not sue for breach of contract because
the FLSA imposes on the employer an absolute duty to pay overtime, regardless
of — or even contrary to — any provision of the contract. The FLSA does not
insert into every employment contract a term that requires the payment of overtime;
the FLSA creates a statutory obligation — not a contractual obligation — to pay
overtime.
In the second amended complaint, Chavarria alleges that Article 120,
Honduran Labor Code — which states that an employer “shall pay” an employee a
severance if the employment, contracted for an indefinite time, concludes for a
reason “other than the will of the worker” (Doc. 49-10 at 12) — was “included in
[Chavarria’s employment] Contract [by operation of law].” (Doc. 49 at ¶ 37) The
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allegation is an unsubstantiated legal conclusion because Chavarria identifies neither
a contract term nor a Honduran Labor Code provision nor anything else that inserts
into Chavarria’s employment contract a term requiring payment of severance
compensation.
Chavarria alleges that Article 3, Honduran Labor Code, “include[s]” in
Chavarria’s employment contract Article 120's severance provision. (Doc. 47 at ¶ 37)
But Article 3 states only that “acts or practices that imply resignation, diminution, or
distortion of the rights” created by the Honduran Labor Code are “null.”
(Doc. 49-10 at 3) Article 3 does not insert into every employment contract either the
Honduran Labor Code in general or Article 120 in particular.
Nor does Article 120, which states that an employer “shall pay” a severance,
require that every employment contract formed under Honduran law must include a
term that requires severance compensation. By the statute’s plain text, Article 120
neither inserts nor even demands any particular contract term. Instead, like the
FLSA, Article 120 requires — statutorily and not contractually — the payment of
severance compensation to certain terminated employees. If the severance
compensation remains unpaid, the statute, not the employment contract, is violated
and the aggrieved employee, if a private right of action exists, can sue for a violation
of the Honduran statute — not for a breach of the employment contract.

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Because Chavarria sues for breach of contract but fails to allege the existence
of a term in her contract that requires severance compensation, Chavarria fails to
state a claim for breach of her employment contract.
Intergro, Dolan, and Renta’s Motion for Summary Judgment
on Count I (Negligence Under Florida Law)
Chavarria alleges that the defendants owed a “duty of care to equip”
Chavarria for whitewater rafting. (Doc. 49 at ¶ 51) Specifically, Chavarria alleges
that the defendants owed Chavarria a duty to equip her with eye protection, the
absence of which allegedly permitted Chavarria’s injury. However, the responsibility
to provide protective equipment belonged entirely to the rafting company, an
independent contractor. McCall v. Alabama Bruno’s, 647 So.2d 175, 177 (Fla. 1st
DCA 1994) (“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 the manner in which the work is done”). Although an exception exists if
the employer negligently selected the independent contractor, McCall, 647 So.2d
at 177, the record shows that the former general manager of Serproma, S.A., Marcio
Paz, “organized” the rafting trip, which included Paz’s hiring the rafting company.
(Doc. 43-6 at 35:23–25, 71:14–74:10; Doc. 49-12 at ¶ 6; Doc. 68-3 at 3; Doc. 68-4
at 3; Doc. 68-5 at 21; Doc. 70-4 at 140:5–9)
And because Paz, rather than Dolan or Renta, “organized” the trip, Chavarria
fails to substantiate her allegation that Dolan and Renta owed Chavarria “a duty to
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select appropriate activities for a corporate retreat taking into consideration the age
range and physical fitness of their employees.” (Doc. 49 at ¶ 51) A duty of care
exists if a defendant’s conduct creates a “foreseeable zone of risk.” Kaiser v. Kolb,
543 So.2d 732, 725 (Fla. 1989). In fact, neither Dolan nor Renta knew that Paz had
arranged a whitewater rafting trip. (Doc. 43-6 at 35:23–25, 71:14–74:10; Doc. 68-4
at 3) Accordingly, neither Dolan nor Renta owed Chavarria “a duty to select
appropriate activities for a corporate retreat.” (Doc. 49 at ¶ 51)
Additionally, a parent corporation is not liable for a subsidiary’s tort. Am. Int’l
Group, Inc. v. Cornerstone Business, Inc., 872 So.2d 333, 336 (Fla. 2d DCA 2004)
(holding that a parent corporation and its subsidiary are “separate and distinct legal
entities” and “not . . . interchangeable for purposes of . . . defending a lawsuit”);
Unijax, Inc. v. Factory Ins. Ass’n, 328 So. 2d 448, 452–53 (Fla. 1st DCA 1976)
(adopting the holding of Gordon Chemical Co. v. Aetna Cas. & Sur. Co., 266 N.E. 632,
655 (Mass. 1971), and concluding that separate legal entities’ common management
or common ownership “does not create a single unit or justify a disregard of separate
corporations” unless the distinction “is a sham, or is used to perpetuate deception or
defeat a public policy”). The “team-building exercise,” which included the rafting
trip, was a Serproma event. (Doc. 43-6 at 73:22–74:6; Doc. 49-12 at ¶ 6; Doc. 68-3
at 3; Doc. 68-4 at 3; Doc. 70-4 at 71:8–13, 89:21–23, 90:8–10, 91:13–15, 96:11–12,
97:6–17, 187:1–188:15) The relation between Serproma and Intergro is unclear, but
the record falls dramatically short of the record necessary — under any theory — to
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disregard the distinct corporateness of Intergro and Serproma.3 In any event, neither
in the original complaint nor in the amended complaint nor in the second amended
complaint has Chavarria pleaded a basis — or the facts to support a basis — for
disregarding the distinct corporateness of Intergro and Serproma. The “single
integrated enterprise” argument (an inapplicable notion borrowed awkwardly from
labor law) appears for the first time in Chavarria’s response (Doc. 70 at 9) to the
defendants’ summary judgment motion.
CONCLUSION
Intergro’s motion (Doc. 52) to dismiss Chavarria’s claim under Florida law
for breach of contract (Count II of the second amended complaint) is GRANTED,
and Chavarria’s breach of contract claim is DISMISSED. Chavarria’s motion
(Doc. 67) for summary judgment on Count II is DENIED as moot. The defendants’
motion (Doc. 69) for summary judgment on Chavarria’s claim under Florida law for
negligence (Count I of the second amended complaint) is GRANTED. The clerk is

3

According to Chavarria, Intergro and Serproma are “affiliated companies” that both
“belong to . . . Dolan.” (Doc. 70-4 at 61:25–62:17) Chavarria testifies that she worked at Dolan’s
request for both Intergro and Serproma, and Dolan does not dispute that Chavarria worked for
both Intergro and Serproma. (Doc. 43-6 at 25:4–16, 73:17–20; Doc. 70-4 at 52:24–53:15) However,
Dolan testifies that Intergro is the “primary customer” of Serproma’s tomato stakes. (Doc. 43-6
at 52:10) Dolan claims to be “an owner” of “a share” of Serproma and, although purporting to not
know whether he owns a controlling share of Serproma, claims to wield veto power over Serproma
business decisions. (Doc. 43-6 at 18:3–8, 31:16–33:5) Serproma’s general manager reports to Dolan,
but Intergro and Serproma are managed by different staffs. (Doc. 43-6 at 30:11–31:16) Intergro owns
no share of Serproma. (Doc. 43-6 at 18:9–14) In affidavits, Paz asserts that Serproma is a subsidiary
of Intergro, that sales to Intergro represented almost all of Serproma’s business, and that Dolan and
Renta are “senior executives of Serproma and Intergro. (Doc. 49-12 at ¶ 4; Doc. 70-3 at ¶¶ 2, 6) Also,
Intergro’s employees in Honduras, although separated from Serproma’s employees, worked in the
same building as Serproma’s employees. (Doc. 43-6 at 20:15–21:2)

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directed to enter judgment for Intergro, Inc., Timothy Dolan, and Felix Renta and
against Carmen Elena Monteilh Chavarria on both counts and to CLOSE the case.4
ORDERED in Tampa, Florida, on March 15, 2019.

4

During the February 12, 2019 hearing and in a notice (Doc. 81), Chavarria’s counsel
announced the possibility of an action in Honduras for breach of the Honduran statute requiring
severance compensation.

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