Jeffrey P. Gale, P.A. // Thoughts on Maximizing Florida Workplace Accident Recoveries

barricadeWhile a recent Florida Supreme Court decision has leveled the playing field for injured workers in workers’ compensation cases — read Jeffrey P. Gale, P.A. // Another Jeb Bush Law Bites the Dust — a better remedy can sometimes be achieved through the civil justice system under negligence law principles.

Florida Statute 440.11 immunizes most employers and fellow-employees from being sued for simple negligence, limiting the remedies available to injured workers to those outlined in Chapter 440, Florida Statutes, Florida’s body of workers’ compensation laws.

‘”[S]imple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons . . ..”‘ Carraway v. Revell, 116 So. 2d 16, 22 (Fla. 1959) (quoting Bridges v. Speer, 79 So. 2d 679, 682 (Fla. 1955)).

The two jurisprudential systems, negligence and workers’ compensation, provide very different remedies to injured victims. One of the main differences is that the workers’ compensation system does not compensate for pain and suffering, while the negligence system does. (No Compensation for Pain & Suffering Under Florida’s Workers’ Compensation System.)

Chapter 440 is a no fault system for providing benefits. It was designed to assure  “the quick and efficient delivery of disability and medical benefits to an injured worker.” § 440.015, Fla. Stat. (2009). Even so, its shortcomings are many. Read these blogs:

In spite of these drawbacks, Florida Statute 440.11 usually bars other options.

The typical workplace accident is caused by employer or co-worker negligence, or the victim’s own fault. The victim cannot pursue a civil remedy for damages caused by his or her fault, and Florida Statute 440.11 bars the pursuit of such a remedy against employers and co-workers for accidents caused by simple negligence. To recover civil remedy damages from the employer, Florida Statute 440.11 forces injured workers to establish the following elements:

  1. the employer engaged in conduct that the employer knew, based on similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee; and
  2. the employee was not aware of the risk because the danger was not apparent; and
  3. the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

Thanks to then Governor Jeb Bush, this standard became law in 2003. It is virtually impossible to overcome.

The hurdle is somewhat lower for pursuing a civil remedy against co-workers. Florida Statute 440.11(b) provides:

“Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death ….”

“Gross negligence . . . is defined as an act or omission that a reasonable, prudent person would know is likely to result in injury to another.” Eller v. Shova, 630 So. 2d 537, 541 n.3 (Fla. 1993) (citing Glaab v. Caudill, 236 So. 2d 180 (Fla. 2d DCA 1970)). [A] finding of gross negligence requires the following:

[F]irst of all, gross negligence presupposes the existence of a “composite” of circumstances which, together, constitute an “imminent” or “clear and present” danger amounting to more than normal and usual . . . peril. . . .

Secondly, gross negligence must be predicated on a showing of chargeable knowledge or awareness of the imminent danger spoken of.

And thirdly, the act or omission complained of must occur in a manner which evinces a “conscious disregard of consequences,” as distinguished from a “careless” disregard thereof (as in simple negligence) or from the more extreme “willful or wanton” disregard thereof (as in culpable or criminal negligence).

This language came from Hoyt v. Corbett, 559 So. 2d 98 (Fla. 4th DCA 1990), which addressed gross negligence in the context of worker’s compensation immunity. There, the decedent’s estate was awarded a verdict after the appellant, the employee, electrocuted the decedent at the workplace. The Court quoted from Glaab, 236 So. 2d at 183-84.

Florida Statute 440.11 was tested in Boston v. Publix Supermarkets, Inc., So.3d , 38 FLW D959 (Fla. 4th DCA 5-1-2013), a case involving the death of a Publix employee in a work accident. The decedent’s personal representative sought civil remedy damages against Publix and the fellow-employee who caused the accident, rather than settle for the measly death benefits under workers’ compensation — F.S. 440.16 allows $7,500 for burial expenses and $150,000 to survivors payable in installments.

Both defendants asserted F.S. 440.11 immunity. The trial court accepted the affirmative defense, dismissing the case against each defendant. Florida’s Fourth District Court of Appeal agreed and disagreed with the trial court. It agreed that the employer was properly dismissed because the facts could not meet the three elements threshold, but disagreed with the fellow-employee’s dismissal because a jury could find gross negligence. Had the standard been the same for the fellow-employee as it was for the employer — the 3-part test — the DCA would have affirmed both dismissals. Instead, it remanded the case to the trial court to allow further proceedings against the fellow-employee.

Few fellow-employees have the financial means to cover the losses resulting from a serious accident. There’s a better chance the employer can cover some or all of the loss.

An employer can be vicariously liable for an employee’s fault which is committed (1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer. Valeo v. East Coast Furniture Co., So.3d , 37 FLW D1820 (Fla. 4th DCA 8-1-2012).

As part of the basic workers’ compensation insurance policy, Coverage B, also called Employers’ Liability Coverage, provides these coverage limits for liability (as opposed to workers’ compensation) losses:

  • Bodily Injury By Accident – $100,000 each accident
  • Bodily Injury By Disease – $500,000 policy limit
  • Bodily Injury By Disease – $100,000 for each employee

If these limits are not enough, company assets can be considered.

Florida’s workers’ compensation system sometimes falls short of providing adequate compensation. In those instances, a civil remedy might be more beneficial. Unfortunately, F.S. 440.11 makes it virtually impossible to get at the employers and their insurance coverage and assets, and exceedingly difficult to succeed against co-employees.

Our firm handles workers’ compensation and personal injury cases. We consider every angle to maximize our clients’ recoveries.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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