Overcoming Workers’ Compensation Immunity in Florida

Because of the limits on compensation available to injured employees through Florida’s workers’ compensation system, Chapter 440, the preferred remedy in cases involving some negligence on the part of the employer is an action at law for damages on account of such injury or death. In contrast to workers’ compensation, this remedy allows for damage awards based on mental pain and suffering, loss of consortium, loss of the decedent’s companionship and protection, past and future loss of support and services.

Unfortunately, the remedy is rarely available to employees or their survivors against employers. Florida Statute 440.11 sees to this limitation by giving employers workers’ compensation immunity.

However, there are three ways for employees injured in the course and scope of employment to overcome workers’ compensation immunity:

The employer fails to secure the payment of compensation, as provided in s. 440.10, by failing to meet the requirements of s. 440.38. It happens, but less frequently than might be expected. Not only is an employer without workers’ compensation insurance open to being sued for negligence, but the state is authorized to levy severe penalties. For these reasons, most employers who are required to maintain the coverage, do. We are currently involved in a negligence suit against an employer that failed, albeit by mistake rather than purposely, to maintain WC coverage.
When an employer commits an intentional tort that causes the injury or death of the employee. See 440.11(1)(b). Also a rare situation. Although many workplace accidents are caused by employer negligence, very few reach the level of employer conduct addressed by the statute. According to the statute, either the employer intended to injure the employee or “[T]he employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.”
The employer denies that the accident happened in the course and scope of the employment. Byerley v. Citrus Publishing, Inc., 725 So. 2d 1230 (5th DCA 1999). Of the three ways to overcome workers’ compensation immunity, this way may be the most common. Our firm has brought a handful of negligence actions against employers through this opportunity, more than either of the other two options.

Personal injury and wrongful death attorneys must be familiar with these alternatives and give each thoughtful consideration when evaluating work related accident cases.
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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.