Jeffrey P. Gale, P.A. // Election of Remedies in Florida: The Point of No Return

Some legal wrongs give the aggrieved party more than one avenue of redress. A common example arises when an injured person must choose between pursuing a remedy under common law or seeking benefits under Florida’s Workers’ Compensation Law, Chapter 440, Florida Statutes. However, once a path is chosen and pursued past a certain threshold, the alternative remedy may no longer be available. This is the doctrine of Election of Remedies.

It is not uncommon for the injured party to first receive workers’ compensation benefits before deciding whether to pursue civil damages. Florida appellate courts have thoroughly analyzed how far one can go down the workers’ compensation path before the election becomes binding. Far less guidance exists, however, on how far one may go in a civil action before being barred from later seeking workers’ compensation benefits.

Yet, the governing legal principle applies to both scenarios:

An election becomes binding “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)

In practice, determining when an election has matured is often clearer in civil litigation. Civil damages are not awarded until a court determines whether common law is the appropriate remedy. Until that point, the election generally remains open.

The Hume Decision

The case of Hume v. Thomason, 440 So. 2d 441 (Fla. 1st DCA 1983), illustrates the consequences of making a binding election. Hume, a carpenter injured while working on the Thomasons’ home, was entitled to elect between workers’ compensation and a civil lawsuit under § 440.11(1), Florida Statutes, because the employer failed to secure workers’ compensation coverage. Hume chose to sue in civil court, but the court entered final summary judgment against him. He then sought workers’ compensation benefits. The Thomasons objected, arguing that Hume had elected his remedy.

The judge of compensation claims agreed, and the First DCA affirmed:

“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.”

The court also observed the unfairness of requiring the employer to defend the same injury claim in two different forums:

“[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.”

In short, Hume elected his remedy—and lost. End of story.

The Gilbert Decision

The principle was similarly tested in Gilbert v. Florida Birth-Related Neurological Injury Compensation Association, 724 So. 2d 688 (Fla. 2d DCA 1999). There, the plaintiffs settled a civil medical negligence claim and later filed a petition for benefits under the Florida Birth-Related Neurological Injury Compensation Plan (NICA). An administrative law judge dismissed the petition, citing the doctrine of election of remedies. The Second DCA reversed:

“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. … The resulting settlement of [the civil] action, although it may imply [the baby was not covered under NICA], fell short of such a determination.”

In other words, an election is not binding unless the underlying factual issue has been definitively resolved.

Application in Workers’ Compensation

In workers’ compensation matters, benefits are often received passively, without the injured worker affirmatively electing them. Such passive receipt—even if substantial—typically does not constitute a binding election.

More commonly, the issue arises when a claimant receives some benefits and then files a civil suit. Despite the general guidance from Duggan, the outer limit of how far one can go in the compensation system before forfeiting a civil remedy remains somewhat unclear.

Still, as shown in Hume and Gilbert, most decisions support the idea that an election is not binding until a factual determination on the core issue has been made. In civil cases, that core issue may be whether the claim is governed by the exclusive remedy provision of Chapter 440. In workers’ compensation cases, it may be whether the injury falls within the Act’s coverage.

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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.

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.