Workers’ Compensation: Not Always an Employee’s Exclusive Remedy

By justin Saar

Contrary to popular belief, Florida’s Workers’ Compensation law is not always a complete bar to employee litigation. Florida’s Workers’ Compensation law is codified in chapter 440, Florida Statutes (2013). The statute is intended to provide a “quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer.”1 Essentially, under this no-fault system, the employee gives up a right to a common-law action for negligence in exchange for strict liability and the rapid recovery of benefits.2 For employees within the statute’s reach, workers’ compensation is the exclusive remedy for “accidental injury or death arising out of work performed in the course and the scope of employment.”3 While providing employees with benefits on a no-fault basis, the flip side of this scheme is its provision for immunity from common-law negligence suits for employers covered by the statute, commonly referred to as “workers’ compensation immunity.”4
However, under certain circumstances, Florida law allows employees to pursue a general liability claim against an employer and an employee can sue his employer for an intentional tort.

An employer is not entitled to workers’ compensation if the employer causes the employee to fail to timely file a claim.

Late last year, the Third District Court of Appeal allowed an employee to file a general negligence claim against his employer for a work-related injury because the employer had concluded that the injury was not incurred during the course and scope of employment, and had failed to timely report the injury to the carrier, resulting in a denial of the claim. When the employee made a claim against the employer for general negligence, the employer asserted that it was entitled to immunity under the workers’ compensation laws and filed a motion for summary judgment, which the rial court denied. On appeal, the appellate court affirmed, stating that “it would be inequitable for the employer, through its insurance carrier, to take the position that there were no work-related injuries and hence no workers’ compensation coverage, and then later, when the employee brings a tort action against the employer, to assert as a defense at law that there was workers’ compensation coverage entitling the employer to immunity from suit. As the employer may not separate itself from its compensation carrier’s determination that the employee’s injuries did not occur during the course and scope of employment, the employer is estopped from taking the totally inconsistent position that the injuries did occur during the course and scope of employment and claim worker’s compensation immunity when sued in tort.” Ocean Reef Club, Inc. v. Wilczewski, 99 So. 3d 1 (Fla. 3d DCA 2012), reh’g denied (Oct. 16, 2012).
Accordingly, when evaluating an employee’s general liability claim against an employer, it is necessary to investigate the existence of workers’ compensation insurance, whether a claim was made to the workers’ compensation carrier and, if the claim was denied, whether the employer’s representations to the workers’ compensation carrier were inconsistent with those made during litigation.

Workers’ compensation immunity does not always preclude an employee’s intentional tort claim.

Under the current workers’ compensation statute, which was amended in 2003, no cases have satisfied the required elements to make a claim for an intentional tort.
Pursuant to section 440.011(1)(b), Florida Statutes, in order for an employee to successfully prove an intentional tort as an exception to the exclusive remedy of workers’ compensation, the employee must prove, with clear and convincing evidence5, the below-required elements of an intentional tort:

  1. The employer deliberately intended to injury the employee, or,
  2. The employer,
  • Engaged in conduct that it knew, based upon explicit warnings specifically identifying a known danger, was virtually certain to result in death or injury to the employee and,
  • The employee was not aware of the risk because the danger was not apparent and,
  • The employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising an informed judgment and
  • The conduct was a legal cause of the employees’ injury or death.

Two recent cases which specifically discuss the elements of an intentional tort as defined within the 2003 statute include List Indus., Inc. v. Phiteau Dalien, 107 So. 3d 470 (Fla. 4th DCA 2013), and Gorham v. Zachry Industrial, Inc., 105 So. 3d 629 (Fla. 4th DCA 2013).

In List Industries, the Fourth District overturned a $2.7 million verdict for the plaintiff and granted the employer’s motion for directed verdict because the employee failed to present “clear and convincing evidence” of each of the three indispensable elements in section 440.11(1)(b)(2), Florida Statutes (2005). The appellate court recognized the 2003 change to the workers’ compensation statute and noted that the change from substantial certainty to virtually certain was an extremely different and a manifestly more difficult standard to meet. It would mean that a plaintiff must show that a given danger will result in an accident every — or almost every — time. The court also commented that, given the stringent standard required to overcome an employer’s statutory immunity, the case was amenable to being decided on summary judgment.
As Judge Altenbernd has observed:

The history of the workers’ compensation system demonstrates that the legislature intended to give coworkers and employers immunity from suit except in extraordinary situations. Such immunity not only limits the expense of doing business in Florida over and above the admittedly significant expenses of the workers’ compensation no-fault system, but also helps maintain a better work environment in which coworkers are not constantly in fear of being sued by their fellow employees. The legislature has thus created an exclusive, administrative, no-fault remedy that is unaffected by comparative negligence in exchange for broad immunity from lawsuits for employers and coworkers. The goal of this policy is to avoid lawsuits at the outset, not simply to prevent adverse verdicts against employers and coworkers at the end of lengthy litigation. If the trial courts are to foster these legislative policies, they must serve as gatekeepers at the initial stages of litigation. Id. at 473-74.

In Gorham, meanwhile, the Fourth District upheld the trial court’s order granting the employer’s motion for summary judgment stating, “we agree with the trial court that, based upon the narrow exception adopted by the Legislature, an employer must know that its conduct is virtually certain to cause injury, or the employer is entitled to immunity.” The appellate court recognized that the newly enacted virtual certainty standard was even more stringent than substantial certainty. Id. at 633-34.
Mr. Gorham was working as a rigger on the FPL power plant construction site when he was injured. On the day of the accident, the crew was attempting to lift and place a nine-ton wall. Two cranes were available to lift the large pre-fabricated wall into place. A tag line to keep the wall from swaying as the crane lifted the wall was attached to the wall, and because of the danger of swaying, attention to the wind speed was very important. On the day before the incident, the general foreman cancelled this lift because the winds were over 20 miles per hour. The foreman testified that a lift would not occur if the winds exceeded 18 miles per hour. At the time Mr. Gorham was injured, he relied upon his foreman to decide whether to proceed with setting the wall and, based upon the foreman’s decision to move forward, believed that the wind was fine; however, it seemed to Mr. Gorham that the wind was blowing at approximately 30 mph.
In determining that summary judgment was appropriate, the court reasoned that there must be evidence that Zachry, through its foreman, knew that the wind speed was in excess of what was safe to perform the lift and that lifting in that condition would with virtual certainty produce injury or death. While there was a dispute as to whether the foreman even took wind readings, taking the evidence in favor of Gorham, it could be said that the foreman did not take the wind readings and allowed the lift to occur not knowing what the wind speed was; however, there was no evidence that such a lift would with virtual certainty cause injury. That afternoon the lift was performed without any injuries, even in increasing wind speeds. The court reasoned that the employer’s conduct may have been grossly negligent, but it was not intentional.
Dalien and Gorham were examined in the recent Fourth District case of Boston ex rel. Estate of Jackson v. Publix Super Markets, Inc., 112 So.3d 654 (Fla.4th DCA 2013) the Fourth District affirmed a summary judgment in favor of the employer supermarket on the basis of Dalien and Gorham, finding that the plaintiff had not met the burden placed on him by the statute to show that “a given danger will result in an accident every—or almost every—time.” Boston, 112 So.3d at 657.
Even more recently, the Third District affirmed summary judgments entered on behalf of two employing companies, in a case handled by Cole, Scott, & Kissane P.A., Vallejos v. Lan Cargo, S.A., 116 So.3d 545 (Fla.3d DCA 2013). In Vallejos, the Third District also examined—among other cases—Dalien, and, in affirming summary judgment for the statutory employers, reiterated the rule that “‘virtually certain’ means that a plaintiff must show that a given danger will result in an accident every—or almost every—time.” Vallejos, 116 So.3d at 555
Based upon recent case law, if an employee makes a claim for an intentional tort, the employer should mount an immediate and aggressive response as Florida courts—especially the Fourth District and the Third District—have clearly identified that there is a very narrow exception to the protection of workers’ compensation immunity.

1 Fla. Stat. § 440.015 (2013).
2 See United Parcel Service v. Welsh, 659 So. 2d 1234, 1235 (Fla. 5th DCA 1995); 2 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation § 65.10 (Desk ed. 1999).
3 Fla. Stat. § 440.09(1) (2013); see also Fla. Stat. § 440.11 (2013).
4 Turner v. PCR, Inc., 754 So. 2d 683, 686 (Fla. 2000), superseded by statute, Fla. § Stat 440.11 (2003), as recognized in Gorham v. Zachry Indus., Inc. 105 So. 3d 629 (Fla. 4th DCA 2013) (this paper discusses, among other changes, the intentional tort exception change of standard from “substantially certain” to “virtually certain”; however, the overall scheme of immunity from common-law negligence remains in effect).
5 “Clear and convincing evidence” is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue.


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