Florida Election of Remedies Law in Context of Workers’ Compensation & Personal Injury

The legal principle which binds a litigant to the path chosen to right a wrong is known as election of remedies. The principle should not be confused with the procedure of seeking alternative remedies within the same forum, best illustrated by a multi-count complaint asserting various legal theories of recovery.

Although not a common element in most cases, the election of remedies issue does arise with some frequency in connection with workers’ compensation and personal injury cases.

For the most part, it is clear when a worker has been injured on the job. Falling from a roof and being struck by a forklift are clear examples of work related accidents. Under Chapter 440 of Florida’s Statutes, Section 440.11 in particular, most employers with four or more employees will have what is called workers’ compensation immunity for these types of accidents. What this means is that most employees are limited to the remedies available under Florida’s workers’ compensation system.

However, under some circumstances the employer will lose the protection of workers’ compensation immunity. When this happens, the injured employee has the option of seeking compensation through the workers’ compensation system or by an “action at law,” better known as a negligence or a personal injury case. 440.11(1)(a); See also 440.06.

The circumstances giving rise to an employer losing the immunity are limited. They are:

The employer fails to secure the payment of compensation required by Chapter 440. In essence, the employer has failed to secure workers’ compensation insurance or qualify as a self-insured.
When an employer commits an intentional tort that causes the injury or death of the employee. 440.11(1)(b).
The accident did not happen during the course and scope of employment or the employer denies that it did. (Byerley v. Citrus Publishing, Inc., 725 So. 2d 1230 (5th DCA 1999) (The employer, which denied workers’ compensation benefits on the assertion that the accident did not occur in the course and scope of employment, was estopped from raising the defense of workers’ compensation immunity in the circuit civil negligence action.) Cf. Tractor Supply Company v. Kent, 966 So. 2d 978 (5th DCA 2007) (Court denied use of estoppel in the civil case because the employer’s denial of the workers’ compensation claim was that the injury was not related to the accident, rather than that the accident did not happen during the course and scope of employment.)

The employee’s decision as to which avenue to pursue should only be made after thoughtful consideration. The consequences of making the wrong choice can be severe, including being deprived of a recovery.

In and of itself, making the initial choice does not necessarily preclude the right to select a different remedy later. Only “when the rights of the parties have been materially affected to the advantage of one or the disadvantage of the other” will a later switch be blocked. Williams v. Duggan, 153 So. 2d 726 (Fla. 1963). For example, efforts resulting in a final workers’ compensation order or settlement could preclude the pursuit of an alternative remedy. Likewise, a civil suit action resulting in a final judgment, for or against the plaintiff, or the acceptance of a settlement could bar a subsequent workers’ compensation claim. Hume v. Thomason, 440 So. 2d 441 (Fla. 1st DCA 1983) (While his civil action was pending, the injured worker filed a claim for workers’ compensation benefits. After the circuit court judge entered summary judgment in favor of the defendant employer, the employer successfully defended the workers’ compensation case on the basis that the injured employee had elected his remedy and was thus precluded from thereafter pursuing his claim. The DCA agreed with the judge of compensation claims.)

Many factors must be considered closely to decide which remedy to pursue and how far. Rarely is the answer clear cut.

IMPORTANT NOTE: 440.19(6) tolls the statute of limitations for bringing a workers’ compensation claim “[W]hen recovery is denied to any person in a suit brought at law or in admiralty to recover damages for injury or death on the ground that such person was an employee, that the defendant was an employer within the meaning of this chapter, and that such employer had secured compensation of such employee under this chapter [440].”
******************************************

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.