Jeffrey P. Gale, P.A. // Election of Remedies — Seeking Workers’ Compensation Benefits After First Pursuing Civil Remedy

maze1-300x225Some wrongs present the aggrieved party with more than one legal remedy. A common example is when an injured person has the option of seeking a recovery under common law or workers’ compensation pursuant to Chapter 440, Florida Statutes. Once the choice is made and pursued beyond a certain point, the alternate option cannot be pursued. This is the legal principle known as Election of Remedies.

Typically, the injured person receives or seeks workers’ compensation benefits before deciding to pursue civil damages. There is no shortage of Florida appellate case law addressing how far one may go in the pursuit before the choice becomes binding. There is very little case law addressing the opposite scenario, namely, how far one may go in pursuing a civil remedy before being foreclosed from seeking workers’ compensation benefits.

The legal analysis is the same for both types of cases:

An election is matured “when the rights of the parties have been materially affected to the advantage of one or the disadvantage of the other,” and “[i]t is generally conceded that to be conclusive it must be efficacious to some extent.” Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936)Williams v. Duggan, 153 So.2d 726 (Fla. 1963).

It is usually much easier to determine whether an election has been made in a civil case than it is in a workers’ compensation case. In civil cases, damages are not paid unless and until a determination has been made on the legal issue of whether common law is the proper vehicle for pursuing a remedy. Until this final determination is made, the election has not matured.

In Hume v. Thomason, 440 So.2d 441 (Fla. 1st DCA 1983), the appellate court affirmed a workers’ compensation judge’s order dismissing with prejudice Hume’s claim for benefits because he had elected to maintain an action at law for damages on account of his injury, pursuant to section 440.11(1), Florida Statutes (1981). (The current version of the 1981 law is 440.11(1)(a).) Hume was injured while working as a carpenter at the Thomason’s home. Eugene Thomason, acting as general contractor, was Hume’s employer but had failed to secure workers’ compensation insurance. When the employer fails to maintain workers’ compensation insurance, “an injured employee … may elect to claim compensation under this chapter [Chapter 440] or to maintain an action at law or in admiralty for damages on account of such injury or death.” 440.11(1)(a). Hume elected to file a civil action at law. The court entered final summary judgment in favor of the Thomasons. Hume then turned around and sought workers’ compensation benefits. The Thomasons defended on the basis that Hume had elected his remedy and should be barred from receiving workers’ compensation benefits. The  judge of compensation claims agreed and so did the 1st DCA. The appellate court reasoned as follows:

In the instant case, the summary judgment rendered in the circuit court was obviously efficacious from the Thomasons’ point of view, as it worked to their advantage and to Hume’s disadvantage. Thus, Hume’s election matured when judgment was entered finally adjudicating the rights of the parties. He was precluded thereafter from pursuing his workers’ compensation claim. Cf. Williams v. Duggan (wherein it was held that the filing of a claim later dismissed without adjudication of its merits does not amount to an irrevocable election). As correctly observed by the deputy commissioner in his order, ‘[t]he employer should not be twice placed in the position of defending himself where he had had to defend either a damage suit on the one hand or a compensation claim on the other to its final conclusion.’

As Hume shows, it is the final decision on entitlement that makes the difference. Hume elected a remedy and lost. End of story. This point is illustrated in Gilbert v. Florida Birth Related Neurological Injury Compensation Association, 724 So.2d 688 (Fla. 2nd DCA 1999). After the civil suit was settled, the plaintiff in the civil suit filed a petition for benefits under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan). Thereafter, the administrative law judge entered his “Summary Final Order of Dismissal” determining that the claim was barred by the doctrine of election of remedies and that to permit the petition to proceed would thwart the purpose of the Plan. The Order was reversed on appeal. The appellate court framed the matter as follows:

The sole issue is whether the obtaining of benefits as a product of a civil action forecloses access to Plan benefits. The answer is yes if that action resulted in a factual determination that the infant was not a NICA baby. Conversely, if an administrative petition results in a determination that the infant is a NICA baby, a civil action is foreclosed. The remedies are mutually exclusive, but only upon a determination of whether the infant is a NICA baby. That is the core issue of both the civil action and the administrative petition. To maintain the civil action and avoid the exclusive remedy provisions of section 766.303(2), Florida Statutes (Supp.1988), the McKaughans alleged that Michael was not a NICA baby. The resulting settlement of that action, although it may imply that assertion to be true, fell short of such a determination, by admission or otherwise. The issue remains open to determination, as if neither the civil action nor the administrative proceeding had been commenced.

In workers’ compensation cases, it is not uncommon for benefits to be paid without the injured person taking affirmative action to receive them. Generally, this so-called passive receipt of benefits, which can be substantial, is not considered a binding election.

However, what often occurs is that other types of workers’ compensation benefits are sought. Despite the pronouncement in Duggan, it is not altogether clear how far one can push without stepping beyond the line of no return. To get a further understanding of this point, read this blog: Jeffrey P. Gale, P.A. // Election of Remedy.

That said, like in Hume and Gilbert, most of the workers’ compensation cases which address the subject approve the pursuit of benefits up to the point a factual determination on the core issue of the action is made. In workers’ compensation cases, the core issue is whether the accident is governed by the exclusive remedy provisions of Chapter 440, Florida Statutes.


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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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