Jeffrey P. Gale, P.A. // Loss of Co-Worker WC Immunity Not Imputed to Employer

Florida employees hurt at work have the potential of being compensated under the State’s workers’ compensation and civil laws. To recover under civil law against employers and fellow employees (including corporate officers or directors, supervisors, and managers), employees must overcome workers’ compensation immunity. Section 440.11(1)(b), Florida Statutes sets out what employees must prove to overcome the immunity*:

Against Employers:

1. The employer deliberately intended to injure the employee; or
2. The employer engaged in conduct that was virtually certain to result in injury or death, and the employee was not aware of the risk.

Against Fellow Employees: 

1. The employee acted with willful and wanton disregard or unprovoked physical aggression or with gross negligence; or
2. The injured employee and the at-fault employee were assigned primarily to unrelated works.

*These are the standards when the employer has secured workers’ compensation coverage as required by Chapter 440. If the employer fails to secure the compensation required by the chapter, the employee may elect to claim compensation under the workers’ compensation laws or maintain an action at law (a/k/a civil law) or admiralty without having to meet the heightened standards outlined above. See Section 440.11(1)(a), Florida Statutes.

An important consideration in every injury case is whether the target defendant has the financial resources to pay for the losses. Workers’ compensation insurance policies will pay for all workers’ compensation benefits. However, because of exclusions, these policies are unlikely to cover the damages associated with an action at law. Most companies also maintain liability insurance policies. However, these policies also often contain exclusions for injuries to employees even when the harm was caused by the employer or a fellow employee.

Some employers have the personal financial wherewithal to meet the obligations associated with significant civil damages. Most individuals do not. Interestingly, the legal principle respondeat superior, which is Latin for “that the master must answer,” does not apply in the realm of workers’ compensation immunity so as to make the employer financially responsible for civil damages caused by a co-employee. See Taylor v. Sch. Bd. of Brevard Cnty., 888 So. 2d 1, 7 (Fla. 2004) (Lewis, J., concurring in result) (noting that the “unrelated works exception to the rule of general immunity applies only in the co-employees context, and application of the provision does not result in the loss of general immunity by an employer”) and Vallejos v Lan Cargo, SA, 116 So.3d 545 (Fla. 3rd DCA 2013). (The statute does not mention any imputation of liability onto the employer and specifically states that immunity includes vicarious liability).

Injured workers have the right to receive workers’ compensation benefits from the employer and maintain an action at law at the same time against fellow employees. Because the remedies are against different entities, pursuing both will not be considered an election of remedy to bar one or the other.

Nevertheless, thoughtful consideration should be given to pursuing a civil remedy against a fellow employee when the financial resources may not be available to pay the damages. The practice of law is a business. Good decisions must be made with regard to the investment of time and resources.