Jeffrey P. Gale, P.A. // Election of Remedy Key to Pursuing Civil Action for Personal Injuries Against Employers and Subcontractors

maze2-300x225Florida statute 440.11 precludes workers injured on the job from recovering damages from the employer at law or in admiralty on account of such injury or death. Damages at law or in admiralty include non-economic damages such as pain and suffering. It is a common law remedy. Damages for pain and suffering are not available under Florida’s workers’ compensation system. Basically, workers’ compensation benefits are limited to medical and indemnity. Statute 440.10 extends the 440.11 immunity to contractors and subcontractors on the same project who are not the injured worker’s actual employer. They are considered statutory employers.

It is every personal injury lawyer’s job to maximize his or her client’s recovery. In most workplace accidents, the injured worker is limited to workers’ compensation benefits, leaving the personal injury lawyer without a role. (Our law firm handles both personal injury and workers’ compensation cases.) This is not only because of 440.10 and 440.11. In many instances, there is nobody to blame for the accident other than the employee.

Are there exceptions to 440.10 and 440.11? Yes. To succeed against the actual employer, the employee must demonstrate that the employer’s conduct rose to the level of intentional conduct substantially certain to result in injury. To make good on a case against a 440.10 entity, the employee must show that the accident was caused by gross negligence. Gross negligence requires:

1) circumstances constituting an imminent or clear and present danger amounting to a more than normal or usual peril, 2) knowledge or awareness of the imminent danger on the part of the tortfeasor, and 3) an act or omission that evinces a conscious disregard of the consequences. Kline v. Rubio, 652 So. 2d 964, 965-66 (Fla. 3d DCA 1995).

Under certain circumstances, an employee may pursue these common law remedies after receiving workers’ compensation benefits. At least one case, Vellejos v. Lan Cargo SA, appears to have allowed the pursuit after the workers’ compensation case was settled and a broad release was signed. (Vellejos, the injured worker, sued a subcontractor alleging gross negligence. The appellate court said he had the right to do so, but upheld the trial court’s summary judgment dismissal on the basis that, as a matter of law, no reasonable jury to conclude that the facts constituted gross negligence. The opinion is confusing and has not been cited as authority by any other appellate courts.)

A person injured while working has the right to elect between two different remedies — workers’ compensation and common law — for compensation. “However … the point upon which a worker’s action with regard to a compensation claim constitutes an election of the workers’ compensation remedy to the exclusion of a civil action is not entirely clear.” Jones v. Martin Electronics, Inc., 932 So. 2d 1100, 1105 (Fla. 2006). Florida courts have clearly stated that the “[m]ere acceptance of some compensation benefits . . . is not enough to constitute an election” of remedies. Velez v. Oxford Dev. Co., 457 So.2d 1388, 1390 (Fla. 3d DCA 1984) (quoting Whitney-Fidalgo Seafoods, Inc. v. Beukers, 554 P.2d 250, 254 (Alaska 1976)); see also Wheeled Coach Indus., Inc. v. Annulis, 852 So.2d 430, 432 (Fla. 5th DCA 2003)Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000)Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st DCA 1995); Wishart v. Laidlaw Tree Serv., Inc., 573 So.2d 183, 184 (Fla. 2d DCA 1991).

There are also the cases where, because the compensability of the claim or the status of the employee at the time of the injury was contested, an election was not made: Vasquez v. Sorrells Grove Care, Inc., 962 So. 2d 411, 415 (Fla. 2d DCA 2007) (noting that the carrier contested the compensability of the claim and whether Vasquez was an employee); Hernandez v. United Contractors Corp., 766 So. 2d 1249, 1252 (Fla. 3d DCA 2000) (holding that because the carrier contested the compensability of the claim and took the position that there was no evidence that the accident arose out of and in the course and scope of Hernadez’s employment, there was no conclusion on the merits); Lowry v. Logan, 650 So. 2d 653, 658 (Fla. 1st DCA 1995) (“there remain disputed issues of fact concerning whether Lowry is an [sic] covered employee or an independent contractor and whether he was injured in the course and scope of his employment”); Wright v. Douglas N. Higgins, Inc., 617 So. 2d 460, 461-62 (Fla. 3d DCA 1993) (reversing summary judgment because there was no determination that plaintiff was an employee in the workers’ compensation case); Wishart v. Laidlaw Tree Serv., Inc., 573 So. 2d 183, 184 (Fla. 2d DCA 1991) (“The critical issue of fact which must be determined by the trial judge is whether the employee was injured in the course and scope of his employment.”); Velez v. Oxford Dev. Co., 457 So. 2d 1388, 1391 (Fla. 3d DCA 1984) (reversing summary judgment because there was no determination that plaintiff was an employee in the workers’ compensation case).

On the other side of the coin are the cases which hold that when an employee is injured on the job and then applies for and receives workers’ compensation benefits, a subsequent negligence suit is barred. These are some of those cases: Yero v. Miami-Dade Cnty., 838 So. 2d 686, 687 (Fla. 3d DCA 2003)Townsend v. Conshor, Inc., 832 So. 2d 166, 167 (Fla. 2d DCA 2002)Delta Air Lines, Inc. v. Cunningham, 658 So. 2d 556, 557 (Fla. 3d DCA 1995)Coney v. Int’l Minerals & Chem. Corp., 425 So. 2d 171, 171-72 (Fla. 2d DCA 1983).

In Jones v. Martin Electronics, Inc., the workers’ compensation insurance carrier voluntarily provided workers’ compensation benefits from the outset. A dispute arose as to the proper rate of compensation for attendant care benefits. Mr. Jones filed a petition for benefits to determine the proper rate. The judge of workers’ compensation claims ruled in his favor.

While Mr. Jones was continuing to receive workers’ compensation benefits, he and his wife brought a civil action against his employer seeking damages in tort. The employer moved to dismiss the civil action on the basis that Mr. Jones had elected the workers’ compensation system as his remedy for the injuries alleged in the civil lawsuit. The trial court denied defendant’s motion. On appeal, the First District reversed the trial court, holding that Mr. Jones had elected his remedy under the workers’ compensation system. Understanding the importance of the issue, the First District certified a question to the Florida Supreme Court, which reframed the question as follows:

IS AN EMPLOYEE WHO IS ENTITLED TO AND HAS RECEIVED WORKERS’ COMPENSATION BENEFITS FOR A WORKPLACE INJURY BUT HAS NOT PURSUED THE COMPENSATION CASE TO A CONCLUSION ON THE MERITS ESTOPPED FROM LATER FILING A SEPARATE CIVIL ACTION AGAINST THE EMPLOYER IN CIRCUIT COURT FOR TORT DAMAGES RESULTING FROM THE SAME WORKPLACE INJURY IF THE EMPLOYER’S CONDUCT THAT CAUSED THE WORKPLACE INJURY RISES TO THE LEVEL OF INTENTIONAL CONDUCT SUBSTANTIALLY CERTAIN TO RESULT IN INJURY FOR WHICH THE EXCLUSIVE REMEDY DOCTRINE IS NOT AVAILABLE?

While the Supreme Court answered the rephrased question in the negative, its analysis demonstrates the difficult nature of the issue. In its discussion of various cases which went both ways, it is sometimes hard to understand the distinctions. In its own case, the court felt that the dispute involving attendant care did not carry enough significance to implicate the election of remedy issue. In support of this position, it relied on the circumstances in Wheeled Coach Indus., Inc. v. Annulis, 852 So.2d 430, 432 (Fla. 5th DCA 2003).

In Wheeled Coach Industries, the employee was killed while working on a truck. The workers’ compensation insurance carrier promptly began paying death benefits to the employee’s widow. She filed a petition for benefits seeking payment of the benefit on a monthly rather than bi-weekly basis. Thereafter, she filed a wrongful death action alleging that the employer had intentionally caused her husband’s injury. The employer moved to dismiss the wrongful death action on the theory that the widow had elected her remedy under the workers’ compensation system by accepting payments and filing the petition for benefits. The trial court denied the motion and the employer sought review in the Fifth DistrictSee id. at 430. On appeal, the Fifth District reasoned that the employee’s widow had not elected her remedy under the workers’ compensation scheme because she had not filed a claim for benefits, only for an interim change, nor had she proceeded to a conclusion on the merits in the workers’ compensation case. See id. at 432.

All of this makes the Vellejos v. Lan Cargo SA case confusing. Mr. Vallejos’ employer’s workers’ compensation insurance carrier accepted the case as compensable and paid benefits. Even still, he filed seven petitions and entered into a lump sum settlement agreement with a broad release. While the court seems to say that Mr. Vallejos elected his remedy, it nevertheless allowed him to proceed in a civil suit against the employer and a subcontractor. (Again, the civil suit was dismissed because the trial and appellate courts felt that no reasonable jury could find that the employer had acted intentionally or the subcontractor had acted with gross negligence.)

The bottom line is that this is a tricky area of law with a large measure of uncertainty. Tread carefully.

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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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