Jeffrey P. Gale, P.A. // Overcoming Workers’ Compensation Immunity in Florida Construction Accidents — Hooking Subcontractors

IMG_2410-207x300Florida lawyers handling accident cases are obligated to make every effort to search out all potential revenue sources to justly compensate their clients. Typically, people harmed in the workplace are entitled to workers’ compensation benefits, which are furnished by employers and their workers’ compensation insurance carriers (“E/C”). Because of the legal concept of workers’ compensation immunity, which is set forth in section 440.11, Florida Statutes, in most instances workers’ compensation is the only form of compensation a worker injured on the job will receive. While workers’ compensation serves a valuable purpose, it also has limitations. The most prominent of those limitations is that compensation is never paid for non-economic damages such as pain and suffering.

In some cases, the workplace injury is caused by a person or entity unrelated to the employer, commonly referred to as a “third party.” This may give the injured worker the opportunity to recover both workers’ compensation benefits from the E/C and civil law damages from the at-fault party. For example, an elevator repairman injured in a rear-end car crash while driving from one job site to another, is free to pursue civil damages against the driver, the owner of the vehicle, and the driver’s employer as the case may be. This is because none of these third party entities has workers’ compensation immunity.

Not surprisingly, there is an exception to this rule. The exception involves accidents that happen on public and private construction projects. The exception, found in section 440.10(1)(e), Florida Statutes, provides as follows:

A subcontractor providing services in conjunction with a contractor on the same project or contract work is not liable for the payment of compensation to the employees of another subcontractor or the contractor on such contract work and is protected by the exclusiveness-of-liability provisions of s. 440.11 from any action at law or in admiralty on account of injury to an employee of another subcontractor, or of the contractor….

Our office was recently contacted by the superintendent of a single family home construction project. He wanted to know if we might be able to bring a civil action for personal injuries against a negligent construction site subcontractor. (While our law firm handles workers’ compensation cases, he had already settled his workers’ compensation case with another lawyer.) His employer, the general contractor, had hired an excavation company to locate underground sewer lines so that a connection could be made for the new house waste line. When, at the request of one of the subcontractor’s employees, he walked over to look at something, the ground below him collapsed, causing him to fall nearly six feet into the deep end of an unfinished swimming pool shell. He sustained severe injuries. The subcontractor created the dangerous condition.

Believe it or not, there are two exceptions to the 440.10 immunity afforded construction site subcontractors. Interestingly, the exceptions are sub-parts to the section, 440.10(1)(e), which creates the immunity. For a subcontractor workers’ compensation immunity to apply,

  1. Either the subcontractor or the contractor has secured workers’ compensation insurance for its employees; and
  2. “The subcontractor’s own gross negligence was not the major contributing cause of the injury.”

See Moradiellos v. Gerelco Traffic Controls, 176 So. 3d 329 (2015)(Plaintiff alleged gross negligence against a subcontractor. While summary judgment was ultimately entered against the Plaintiff, it was because the facts did not rise to the level of gross negligence, rather than any deficiency in the legal theory).

Since subpart 1. does not apply to the case we are considering, we are left with deciding whether the subcontractor’s conduct amounted to gross negligence.

In Weller v. Reitz, 419 So.2d 739, 741 (Fla. 5th DCA 1982), the difference between simple and gross negligence was described as follows:

[S]imple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons or property whereas gross negligence is that course of conduct which a reasonable and prudent man would know would probably and most likely result in injury to persons or property. To put it another way, if the course of conduct is such that the likelihood of injury to other persons or property is known by the actor to be imminent or “clear and present” that negligence is gross, whereas other negligence would be simple negligence.

Therefore, 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.” Vallejos v. Lan Cargo S.A., 116 So.3d 545, 552 (Fla. 3d DCA 2013).

This is an exceedingly high hurdle to overcome. Making matters worse is the long list of appellate cases standing guard over what has long been the sacred ground of workers’ compensation immunity.

That said, we may yet move forward with the case described above.


Contact us at 305-758-4900 or by email to learn your legal rights.

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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