It is the job of every injury lawyer to maximize the client’s recovery. Sometimes when a person is hurt at work, more than one remedy is available. Workers’ compensation is one remedy. Civil law is another.
Florida’s workers’ compensation laws do not allow for the recovery of noneconomic damages such as pain and suffering. Workers’ compensation covers only authorized medical expenses and a defined period of lost wages. Noneconomic damages are not allowed. Civil remedy damages include economic damages such as medical expenses and lost wages as well as noneconomic damages.
Florida Statute 440.11 provides immunity to employers and their employees from civil remedy actions. There are exceptions to this rule. The exceptions are outlined in 440.11. The employer loses its immunity if it fails to maintain the workers’ compensation security required by Chapter 440 or commits an intentional tort. Section 440.11(1)(b) describes the fellow-employee exceptions:
Fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment. (Italics added.)
In Moradiellos v Gerelco Traffic Controls, Inc., 176 So.3d 329 (Fla. 3rd DCA 2015), Mr. Moradiellos was killed in a construction site incident caused by the negligence of a subcontractor’s employee. Employees of construction subcontractors typically also get the 440.11 workers’ compensation immunity. The decedent was employed by the general contractor.
Moradiellos’s wife and estate brought a civil action for wrongful death damages against the subcontractor’s employee under the unrelated works exception. Citing language from 440.02, 440.10, and 440.11, the Third DCA ruled against Plaintiff. The court decided that the unrelated works exception applies only to fellow employees of the Claimant’s own employer. The decision precluded the wrongful death claim based on allegations of simple negligence.
The wife/estate also sought to circumvent workers’ compensation immunity by alleging gross negligence against the sub’s employee. While the court said that Florida law allows claims for gross negligence against subs’ employees, it felt that the conduct in the subject case did not amount to gross negligence.
The ruling limited the wife/estate’s recovery to the benefits available through workers’ compensation. Whereas jury awards for claims made under the Wrongful Death Act can be in the millions of dollars, death benefits under workers’ compensation are limited to $150,000 plus funeral expenses not to exceed $7,500. Section 440.16, Florida Statutes.
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.
DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.