Jeffrey P. Gale, P.A. // Key Element in Workers’ Compensation Statutory Employer Liability

The State of Florida obligates employers to secure and provide workers’ compensation benefits to their employees, as mandated by section 440.10, Florida Statutes. Employers typically satisfy this obligation by maintaining an active workers’ compensation insurance policy that ensures coverage for compensable workplace injuries.

Section 440.10(b) goes so far as to provide that where a “contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.” The contractor under these circumstances is commonly referred to as the “statutory employer.”

While Florida law requires a subcontractor to furnish the contractor with proof of workers’ compensation coverage—see section 440.10(1)(c), Florida Statutes—in practice, subcontractors frequently fail to maintain the required insurance. Gaps in compliance arise for a variety of reasons, including cost pressures, administrative lapses, misclassification of workers, or deliberate avoidance of premium obligations.

We are currently litigating these issues in two separate cases. In one, the subcontractor procured a policy that insured only himself and failed to cover his employees. When one of those employees sustained a deep laceration, the workers’ compensation carrier denied the claim for lack of coverage. In the other case, the subcontractor’s policy was cancelled just days before the accident due to nonpayment of premiums.

In our experience, contractors are far more likely than subcontractors to maintain the required workers’ compensation coverage. As a result, section 440.10(1)(b), Florida Statutes, operates as a critical safety net: when a subcontractor is uninsured, the contractor becomes the statutory employer and is responsible for securing benefits. Thus, an injured employee of an uninsured subcontractor should—at least in theory—ultimately receive workers’ compensation benefits through the contractor’s coverage.

Contractors and their carriers routinely resist statutory employer claims, leaving Claimants to establish each element of coverage. One element that is frequently overlooked is whether the contractor actually qualifies as a “contractor” under section 440.10(1)(b), Florida Statutes—a threshold requirement that must be proven before statutory liability can attach.

Interestingly, the outcome turns on whether the entity that sublet the work had a contractual obligation to perform the work it sublet. In Jones v. Florida Power Corp., 72 So. 2d 285, 289 (Fla. 1954), the Florida Supreme Court explained the statutory language as follows:

“[T]he clear implication in this part of the Act is that there must be a contractual obligation on the part of the contractor, a portion of which he sublets to another. To `sublet’ means to `underlet’, Webster’s New International Dictionary; in the context in which it is here used, the effect of subletting is to pass on to another an obligation under a contract for which the person so `subletting’ is primarily obligated.”

In Jones, Florida Power & Light (“Corporation”) was sued in a common‑law negligence action by an employee of a company it had retained to construct an extension to its Avon Park plant. The Corporation asserted workers’ compensation immunity on the ground that it qualified as the statutory employer under section 440.10, Florida Statutes. The trial court agreed and entered summary judgment in FPL’s favor based on that affirmative defense.

The Supreme Court reversed the lower court and remanded for further proceedings. It reasoned that since FPL owned the property under construction, it “had no primary obligation under a contract which it was passing on to another. It was not, then, a ‘contractor’ within the meaning of the Act.”

This legal standard carries significant implications under both common‑law negligence principles and Florida’s workers’ compensation scheme. In many worksite accidents, it is impossible to attribute fault to a third party; some incidents occur without any actionable negligence at all. When an accident “just happens,” the workers’ compensation system, which is a no-fault system, can be the only action the injured party can pursue.

Conversely, when significant injuries are caused by the negligence of a third party, a common‑law action may provide a far more meaningful remedy than workers’ compensation, offering damages that exceed the limited benefits available under Chapter 440. This is precisely the remedy the employee in Jones sought to pursue against FPL. Had FPL been deemed the statutory employer under section 440.10, the employee would have been barred from pursuing that common‑law action and limited exclusively to workers’ compensation benefits.

The principle established in Jones is too often overlooked, and ignoring it can lead to serious consequences.

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Contact us today at (305) 758-4900 or by email for a free consultation to learn your legal rights. If we accept your case, we will represent you on a contingency fee basis — meaning you pay no upfront costs. Our fee is collected only if we obtain a favorable recovery on your behalf. If there is no recovery, you owe nothing.

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.

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