Jeffrey P. Gale, P.A. // Election of Remedy

maze2-300x225Accident victims can sometimes bring a legal claim seeking compensation for their losses. They may even have the option of electing a remedy between personal injury common law and workers’ compensation statutory law. The choice can be consequential.

Personal injury claims are cases at common law. In Florida, recoverable damages in personal injury claims include medical expenses, lost wages, and pain and suffering. In suits at common law, the 7th Amendment to the U.S. Constitution guarantees the right of trial by jury.

Workplace injury cases in Florida against employers can be limited to the statutory remedies outlined in Chapter 440 of the Florida Statutes. Cases are tried before administrative law judges (known as Judges of Compensation Claims, or JCC) and, unlike in personal injury cases, compensation for pain and suffering cannot be awarded.

Election of Remedy is a legal concept concerning:

The liberty of choosing (or the act of choosing) one out of several means afforded by law for the redress of an injury, or one out of several available Forms of Action. An election of remedies arises when one having two coexistent but inconsistent remedies chooses to exercise one, in which she or he loses the right thereafter to exercise the other. The Doctrine provides that if two or more remedies exist that are repugnant and inconsistent with one another, a party will be bound if he or she has chosen one of them. The Free Dictionary

The doctrine “… is an application of the doctrine of estoppel and provides that the one electing should not later be permitted to avail himself of an inconsistent course.” Williams v. Robineau, 124 Fla. 422, 168 So. 644, 646 (1936).

While there is plenty of case law on the subject, it is still not entirely clear what constitutes an election sufficient to lock in the choice. This uncertainty was acknowledged by the Florida Supreme Court in Jones v. Martin Electronics, Inc., 932 So.2d 1100 (Fla., 2006): “[I]n the context of workers’ compensation, 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 @ 1105.

Typically, properly insured Florida employers have immunity from suits at common law arising out of workplace accidents. The immunity limits injured workers to the remedies available under the workers’ compensation system. Workers’ compensation immunity for workplace accidents is not absolute. Some of the exceptions are set forth in sections 440.11(a) & (b), Florida Statutes. Others include:

  • The plaintiff is not an employee. Only the employer and some statutory employers have workers’ compensation immunity. For example, independent contractors are not employees. Legitimate borrowed employees are. Factual disputes often arise from these legal concepts.
  • The plaintiff is injured outside the scope and course of employment.

Given the difficulty in determining what constitutes an election of remedy, case law must be understood before undertaking a litigation course of action. This blog will examine some of the cases.

In Wheeled Coach Industries, Inc. v. Annulis, 852 So.2d 430 (Fla. 5th DCA 2003), the court decided that “to constitute an election of remedies … [t]here must be evidence of a conscious intent by the claimant to elect the compensation remedy and to waive his other rights.” It also decided that a claim must be litigated to a conclusion on the merits. This reasoning was accepted in Jones.

In Jones and Wheeled Coach, the workers’ compensation carriers voluntarily provided benefits. Even while benefits were being provided, workers’ compensation claims were filed. In Jones, the claim was for an increase in the hourly rate paid for attendant care. In Wheeled Coach, the claim was for a change in the payment schedule of indemnity benefits from bi-weekly to monthly. Both courts decided that neither claimant evinced a conscious intent to choose workers’ compensation benefits and to reject any potential tort claim. These rulings allowed the claimants to maintain civil lawsuits. In Jones, the court stated:

Neither Mr. Jones’s entitlement to workers’ compensation benefits nor the extent of his injuries was ever a contested issue, as the compensation carrier for Martin Electronics began voluntarily making benefit payments almost immediately after Mr. Jones sustained his injuries. See Jones. 877 So.2d at 767. Therefore, the petition, hearing, and resulting order here did not constitute litigation to a conclusion on the merits of Mr. Jones’s compensation claim and, in accordance with established Florida law, did not constitute an election by Mr. Jones of his workers’ compensation remedy. See Duggan, 153 So.2d at 726; Robineau, 124 Fla. 422, 426, 168 So. 644; Wheeled Coach, 852 So.2d at 433; Hernandez, 766 So.2d at 1253; Lowry, 650 So.2d at 657.

Put another way, the “`[m]ere acceptance of some compensation benefits . . . is not enough. . . .'” Id. at 1105 (alteration in original) (quoting Velez v. Oxford Dev. Co., 457 So.2d 1388, 1390 (Fla. 3d DCA 1984)). Rather, the remedy chosen must be “pursued to full satisfaction,” Lowry v. Logan, 650 So.2d 653, 656 (Fla. 1st DCA 1995), a phrase that has been interpreted to mean a “determination or conclusion on the merits,” id. at 657.

The key elements in Jones and Wheeled Coach:

  • The workers’ compensation insurance carriers voluntarily accepted compensability.
  • The benefits sought in the workers’ compensation claims were di minimis or peripheral to such substantive issues as compensability and employment status.
  • Civil actions were brought on the exception contained in 440.11(1)(b). (The standard under which the actions were maintained was changed, effective 2003, by the Florida Legislature, making it more difficult to maintain such actions against employers.)

In contrast, in Vallejos v. Lan Cargo SA (Fla. 3rd DCA 2013) the appellant’s civil action against two statutory employers was barred based on election of remedy. Even though some benefits were voluntarily provided, the workers’ compensation claimant (appellant/plaintiff) filed numerous workers’ compensation petitions. He eventually settled his workers’ compensation case with the employer and its carrier and signed a broad settlement release. Two years later he filed a civil action alleging two counts of negligence and gross negligence against both statutory employers and one count of intentional tort against one of them. Despite the voluntary provision of benefits by the workers’ compensation carrier, like in Jones and Wheeled Coach, he trial court granted summary judgment in favor of the appellees. The trial court reasoned that Vallejos had elected the remedy afforded by the workers’ compensation statutes and had not shown that a genuine issue of material fact existed to support a case against the appellees based on exceptions to the workers’ compensation statute.

The 3rd DCA upheld this reasoning. In doing so, the 3rd DCA implied that a liability case can be maintained even if an election has been made as long as material facts exist to support the action based on the exceptions (of gross negligence and intentional tort). The court interpreted Jones as allowing this result, stating as follows:

All Jones means for Vallejos is that he can still pursue a civil action based upon an exception to the exclusivity of the workers’ compensation statute because none of those claims were litigated in the workers’ compensation case.

The court went on to say: “Although Vallejos was able to pursue a civil action based upon exceptions to the workers’ compensation statute, the trial court correctly granted summary judgment in favor of the appellees because the “gross negligence” and “unrelated works” exceptions do not apply as a matter of law, and taking the facts in the light most favorable to Vallejos, he cannot prove that Infinity was grossly negligent or that Lan committed an intentional tort.”

As for the negligence count against both defendants, Vallejos argues that he did not express a conscious intent to elect workers’ compensation as his remedy and that his case did not reach a conclusion on the merits. Therefore, he argued, he did not elect his remedy. The court dispensed with this argument by pointing to the following factors:

  • Vallejos elected his remedy by filing a petition for benefits, receiving payments, and negotiating a settlement.
  • The carrier did not contest the compensability of the claim or whether he was an employee.
  • There was no question that Vallejos was injured during the scope of his employment.
  • The release signed by Vallejos — a General Release is typically executed by claimants in every workers’ compensation case — “did not contain a clause stating that the release should not be construed as an election of remedies.” In other words, Vallejos did not reserve his right to elect another remedy.

The Vallejos court cited cases for the proposition that when an employee is injured on the job and then applies for and receives workers’ compensation benefits, a subsequent negligence suit is barred. 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). This is an additional affirmative defense to the common workers’ compensation immunity affirmative defense based on the proposition of “[w]here an injury is suffered in the course and scope of employment, worker’s compensation is the exclusive remedy for recovery against the employer,” Wishart v. Laidlaw Tree Serv., Inc., 573 So. 2d 183, 184 (Fla. 2d DCA 1991) (citing Fla. Stat. § 440.11).

Vallejos raises a further concern to those considering bringing a 440.11 exception case. Vallejos argued that the following clause in the signed release preserved his right to elect another remedy: ‘”[T]his release is in no way to be construed as an admission of any wrongdoing or liability on the part of the Releasees.”‘ The court disagreed, stating: “[A]ll this statement means is that there has been no determination on the merits as to neglect or intent for purposes of determining whether a claim can be made under an exception to statutory immunity.” The important message from this comment is that a release containing language reaching a determination on the merits of neglect or intent, could bar an exception action. Such language is common in workers’ compensation releases.

In Vasquez v. Sorrells Grove Care, Inc., 962 So.2d 411 (Fla. 2nd 2007) a tort action was allowed to proceed against a party with whom the injured party (Vasquez) had previously reached a negotiated workers’ compensation settlement. The appellate court decided that Vasquez’s actions “did not demonstrate a conscious intent to choose the workers’ compensation benefits to the exclusion of his potential tort claim, and he did not pursue that claim to a conclusion on the merits.” The court relied on the following factors:

  • Conflicting positions taken by the defendant with regard to Vasquez’s employment status. In the workers’ compensation forum, the defendant asserted that Vasquez was not an employee. When Vasquez responded to that defense by bringing a claim in civil court, the defendant asserted in circuit court the affirmative defense of workers’ compensation immunity. (Vasquez filed twice in WC court and twice in civil court. The defendant asserted these contrary positions in the first filings.)
  • Workers’ compensation settlement paperwork:
    • The release did not indicate that Sanchez “chose the workers’ compensation forum to the exclusion of his pursuit of his civil tort case.”
    • The release noted the defendant’s objection to the settlement and release.
    • The release contained language that the settlement was not intended to release the defendant from any liability that might resort from a tort claim.
    • Language specifically stating the settlement was not to be construed as an election of remedies: “This settlement is entered into between Claimant and the Released Parties and shall not be considered an election of remedies by Claimant precluding a possible cause of action against Sorrell Brothers in accordance with Hernandez v. United Contractors, 766 S2d [sic] 1249 (Fla. 3d DCA 2000).”
    • Language that the settlement was only for potential workers’ compensation claims, not other potential causes of action.
    • Sanchez Vasquez ‘”reserv[ed] the right to pursue a third party claim against [Packing Company or Grove Care] or any third party.”‘
    • Sanchez acknowledged that there was no employment relationship between himself and the defendant.

In Hernandez v. United Contractors Corp., 766 So. 2d 1249, 1252 (Fla. 3d DCA 2000), despite entering into a workers’ compensation mediated settlement agreement with her husband’s employer in a contested case, the surviving spouse was allowed to pursue a wrongful death action against the statutory employer (see section 440.10(1)(b), Florida Statutes). The Third District decided that “the settlement of the workers’ compensation claim between herself and CA [the employer] was a matter of convenience to both parties and did not constitute an election of remedies because she had no conscious intent to make an election of remedies and waive other rights.” The court noted that in the settlement stipulation the employer contested the compensability of the claim and took the position there was no evidence the accident arose out of and in the course and scope of decedent’s employment. In the court’s view, this meant the workers’ compensation remedy was not pursued to a determination or conclusion on the merits, thus, there had not been an election of remedies.

These decisions demonstrate jurisprudential obedience to the “the more liberal rule” of the election of remedy doctrine in Florida, as espounsed in Williams v. Robineau, 124 Fla. 422, 168 So. 644, 646 (1936), under which the mere bringing of an action or choosing of a remedy is not deemed an “election of remedies,” unless the remedy chosen is pursued to full satisfaction. As the Robineau court stated, “the mere bringing of an action or suit which is dismissed before a judgment, where no advantage has been gained or detriment occasioned, does not constitute an election of remedies.” Supra at 646.

In Lowry v. Logan, 650 So. 2d 653 (Fla. 1st DCA 1995), it was further explained that Florida follows the rule that either a dismissed or an unsuccessful compensation claim does not bar a damage suit, Id. at 656, whereas a successful workers’ compensation or civil damages remedy constitutes an election. Pearson v. Harris, 449 So.2d 339 (Fla. 1st DCA 1984); Chorak v. Naughton, 409 So.2d 35 (Fla. 2d DCA 1981); Matthews v. G.S.P. Corp., 354 So.2d 1243 (Fla. 1st DCA 1978); Michael v. Centex-Rooney Construction Co., Inc., 645 So.2d 133 (Fla. 4th DCA 1994).

As the Supreme Court of Florida explained in Robineau,168 So. at 646:

An election of remedies presupposes a right to elect. It is a choice shown by an overt act between two inconsistent rights, either of which may be asserted at the will of the chooser alone. It is generally conceded that to be conclusive it must be efficacious to some extent. A position taken which does not injure the opposite party is not an election which precludes a change or raises an estoppel. The election is matured when the rights of the parties have been materially affected to the advantage of one or the disadvantage of the other.

In Greene v. Maharaja of India, Inc., 485 So.2d 1329 (Fla. 1st DCA), rev. denied, 494 So.2d 1151 (Fla. 1986), the court noted that in cases such as Pearson and Matthews, where the doctrines of equitable estoppel and election of remedies had been applied to bar claimants from later maintaining civil actions, the plaintiffs there had “… previously sought workers’ compensation and obtained orders on the merits advantageous or potentially advantageous to them… .” Greene, 485 So.2d at 1331-32. To further the point, the court referenced Ferraro v. Marr, 490 So.2d 188 (Fla. 2d DCA), rev. denied, 496 So.2d 143 (Fla. 1986), a case in which the workers’ compensation immunity defense was sustained on the following facts:

  • a claim for workers’ compensation benefits had been filed by the plaintiff.
  • plaintiff admitted that he knowingly signed the claim.
  • the claimant made a conscious choice to receive, and ultimately did receive, compensation benefits.
  • the plaintiff had entered into a stipulation agreeing his accident arose out of in the course and scope of his employment.

In Williams v. Hillsborough Country School Board, 389 So.2d 1218 (Fla. 1st DCA), a workers’ compensation claimant was denied benefits on a finding by the Judge of Industrial Claims that her mental injuries were not compensable under Florida’s Workers’ Compensation Act. The judge’s decision was upheld on appeal, with these concluding words from the 1st DCA:

While the alleged injuries are not encompassed within the Florida Workers’ Compensation Act, those injured under such circumstances or other situations not covered by the act are free to pursue common-law remedies. Grice v. Suwannee Lumber Manufacturing Company, 113 So.2d 742 (Fla. 1st DCA 1959).

There’s another side to the election of remedy of coin. Those being pursued for compensation — defendants in civil court, employers/carriers in workers’ compensation cases — have consequential decisions to make with regard to defending claims.

In Byerley v. Citrus Pub, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999), the employee filed a claim for workers’ compensation benefits. The employer asserted that Byerley was not an employee at the time of the accident. Byerley then dismissed the workers’ compensation claim and filed a tort action against the employer. The employer answered by alleging that “Byerley was in the scope of her employment and the tort claim against Citrus Publishing is barred by the Workers’ Compensation Immunity as provided by Florida Statutes,” a position inconsistent with its defense in the workers’ compensation case. The employer moved to dismiss the complaint on this affirmative defense, and the trial court granted the motion. The 5th DCA reversed the court’s ruling, explaining that “[t]he employer created a Hobson’s choice for Byerley: the employer, through its insurance carrier, denied her claim for workers’ compensation, and then, when Byerley elected to proceed in a tort action, argued that she could not sue because her exclusive remedy was the Workers’ Compensation Act.” It went on to say:

It would be inequitable for an employer to deny worker’s compensation coverage on the ground that the employee’s injury did not arise out of the course and scope of employment, then later claim immunity from a tort suit on the ground that the injury did arise out of the course and scope of employment. This argument, if accepted, would eviscerate the Workers’ Compensation Act and allow employers to avoid all liability for employee job related injuries.

By taking inconsistent positions in different venues, the defendant in Byerley was estopped from prosecuting his defense in the personal injury case. The estoppel standard, while not as elusive to pin down as the election of remedy standard, can still be tricky. A good general description of the law is set forth in Gil v. Tenet Healthsystem N. Shore, Inc., 204 So.2d 125 (Fla. 4th DCA 2016):

If an employer takes the position in a workers’ compensation proceeding that the employee is not owed workers’ compensation because “the injury did not occur in the course and scope of employment, or that there was no employment relationship,” the employer may be subsequently estopped from claiming immunity on the grounds that “the worker’s exclusive remedy was workers’ compensation….” Id. at 222-23 (citing Coastal Masonry, Inc. v. Gutierrez, 30 So.3d 545, 547-49 (Fla. 3d DCA 2010); Byerley v. Citrus Publ’g, Inc., 725 So.2d 1230, 1232-33 (Fla. 5th DCA 1999)). However, if an employer merely states a defense within the workers’ compensation proceeding, an employer will not be estopped from later asserting immunity. See Tractor Supply Co. v. Kent, 966 So.2d 978, 981 (Fla. 5th DCA 2007).

In Gil, the employer denied the workers’ compensation petition for benefits, writing in its notice of denial, “Entire claim denied as claimant’s employment is not the major contributing cause for his death.” Gil voluntarily dismissed the petition then filed a wrongful death action against the hospital in circuit court. The hospital moved for summary judgment, claiming it had immunity from civil suit because Gil’s exclusive remedy was workers’ compensation. The hospital claimed that its notice of denial did not deny that the injury occurred in the course of the decedent’s employment. Rather, the notice of denial asserted the “medical causation” defense. The medical causation defense appears in section 440.09(1), Florida Statutes:

[T]he accidental compensable injury must be the major contributing cause of any resulting injuries. For purposes of this section, “major contributing cause” means the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought.

The lower court agreed and dismissed the complaint. On appeal, the 4th DCA reversed and remanded. In its view, the notice of denial was ambiguous.

“If the language employed in the notice of denial could give rise to more than one interpretation, such that it cannot be fairly determined whether the employer’s positions are inconsistent, summary judgment is inappropriate” to resolve that factual issue. Gil,204 So. 3d at 128 (alteration in original).

In Payne v. J.B. Hunt Transport, Inc., two workers’ compensation petitions were filed. The first was denied on the grounds that the claimant had not given notice within 30 days of his injury and that “[w]ork is not the major Contributing Cause of claimant’s injuries, or disability.” The E/C denied the second petition as follows: “This is a total denied claim, therefore no indemnity or medical bills will be paid or authorized.” The petitions were voluntarily dismissed before adjudication.

Payne then filed a tort action against J.B. Hunt, to which it raised the affirmative defense of workers’ compensation immunity. Payne submitted that J.B. Hunt was estopped from raising this defense. Defendant J.B. Hunt filed for summary judgment on workers’ compensation immunity. The motion was granted and the order was affirmed on appeal. The US Court of Appeals explained:

  • J.B. Hunt never denied that Payne was injured in the course and scope of his employment.
  • Payne had no reason to conclude that J.B. Hunt denied the claim because the injury was unrelated to Payne’s work. The first denial stated only that work was not a major contributing cause of the injury.
  • Payne understood that the denial was based on his preexisting medical conditions.
  • The MCC defense is not ambiguous.

The essence of the numerous cases on this subject is that workers’ compensation Employers/Carriers will not be estopped from asserting workers’ compensation immunity for merely asserting in the workers’ compensation proceeding a defense cognizable under the workers’ compensation system. Examples of such defenses include major contributing cause, statute of limitations, untimely reporting, and drug and/or alcohol impairment. These assertions are functionally different than a representation by the Employer/Carrier that the accident did not occur in the workplace or that the claimant is not an employee. These assertions in the workers’ compensation case will estop the same party from defending on workers’ compensation immunity in the civil proceeding.


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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.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

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