civil law - Jeffrey P. Gale, P.A.

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

Jeffrey P. Gale, P.A. — Tue, 22 Jul 2025 16:27:16 GMT

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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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.

Jeffrey P. Gale, P.A. // Loss of Co-Worker WC Immunity Not Imputed to Employer

Jeffrey P. Gale, P.A. — Thu, 29 Dec 2022 21:22:25 GMT

Florida employees hurt at work have the potential of being compensated under the State’s workers’ compensation and civil laws. To recover under civil law against employers and fellow employees (including corporate officers or directors, supervisors, and managers), employees must overcome workers’ compensation immunity. Section 440.11(1)(b), Florida Statutes sets out what employees must prove to overcome the immunity*:

Against Employers:

The employer deliberately intended to injure the employee; or
The employer engaged in conduct that was virtually certain to result in injury or death, and the employee was not aware of the risk.

Against Fellow Employees:

The employee acted with willful and wanton disregard or unprovoked physical aggression or with gross negligence; or
The injured employee and the at-fault employee were assigned primarily to unrelated works.

*These are the standards when the employer has secured workers’ compensation coverage as required by Chapter 440. If the employer fails to secure the compensation required by the chapter, the employee may elect to claim compensation under the workers’ compensation laws or maintain an action at law (a/k/a civil law) or admiralty without having to meet the heightened standards outlined above. See Section 440.11(1)(a), Florida Statutes.

An important consideration in every injury case is whether the target defendant has the financial resources to pay for the losses. Workers’ compensation insurance policies will pay for all workers’ compensation benefits. However, because of exclusions, these policies are unlikely to cover the damages associated with an action at law. Most companies also maintain liability insurance policies. However, these policies also often contain exclusions for injuries to employees even when the harm was caused by the employer or a fellow employee.

Some employers have the personal financial wherewithal to meet the obligations associated with significant civil damages. Most individuals do not. Interestingly, the legal principle respondeat superior, which is Latin for “that the master must answer,” does not apply in the realm of workers’ compensation immunity so as to make the employer financially responsible for civil damages caused by a co-employee. See Taylor v. Sch. Bd. of Brevard Cnty., 888 So. 2d 1, 7 (Fla. 2004) (Lewis, J., concurring in result) (noting that the “unrelated works exception to the rule of general immunity applies only in the co-employees context, and application of the provision does not result in the loss of general immunity by an employer”) and Vallejos v Lan Cargo, SA, 116 So.3d 545 (Fla. 3rd DCA 2013). (The statute does not mention any imputation of liability onto the employer and specifically states that immunity includes vicarious liability).

Injured workers have the right to receive workers’ compensation benefits from the employer and maintain an action at law at the same time against fellow employees. Because the remedies are against different entities, pursuing both will not be considered an election of remedy to bar one or the other.

Nevertheless, thoughtful consideration should be given to pursuing a civil remedy against a fellow employee when the financial resources may not be available to pay the damages. The practice of law is a business. Good decisions must be made with regard to the investment of time and resources.

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Contact us at 305-758-4900 or by email to learn your legal rights.

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.

Jeffrey P. Gale, P.A. — Arbitration is Un-American

Jeffrey P. Gale, P.A. — Thu, 27 Oct 2022 18:57:05 GMT

The 7th Amendment to the United States Constitution, ratified in 1791, codifies the importance of jury trials in civil cases to the framework in the American Way. Here is the amendment’s simple language:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Jury trials allow everyday citizens, guided by the law and the facts, to pass judgment on civil matters between contesting parties. The concept is that the collective wisdom of juries consisting of our peers, devoid of bias and preference, will render just decisions. The system, which, in my view, is the greatest system devised by any society for handling such matters, has worked remarkably well.

Arbitration is a threat to the civil jury trial system. Wikipedia describes Arbitration as “a form of alternative dispute resolution that resolves disputes outside the judiciary courts. The dispute will be decided by one or more persons, which renders the ‘arbitration award'”. For the most part, arbitrators are lawyers and former judges. In Florida, court-appointed arbitrators must be members of The Florida Bar.

There are two main ways parties end up in arbitration. When it is by court-appointment, the parties must agree to arbitrate. Without this agreement, the case will stay within the judicial court system and proceed to a trial by jury unless the plaintiff, the complaining party, has requested a bench trial. The other way parties end up in arbitration is if the complaining party signed a document at the outset of his or her relationship with the other party consenting to resolve disputes through arbitration. Arbitration clauses are commonly found in consumer contracts and employment contracts. For example, the typical contract for cell phone services between customer and provider, say AT&T, will contain an arbitration provision. We’ve all signed these agreements without reading the fine print.

Some arbitration agreements have profound consequences. In Massage Envy Franchising, LLC v. Jane Doe, 47 Fla. L. Weekly D1151 (Fla. 5th DCA May 27, 2022), a woman filed a multicount complaint against Massage Envy alleging that her massage therapist sexually assaulted her during a massage. She requested a jury trial. Massage Envy responded by filing a pleading seeking to compel arbitration. The trial court denied Massage Envy’s request. Massage Envy appealed the ruling. The 5th District Court of Appeal reversed the lower court, thus forcing the sexual assault claim to be decided by a paid arbitrator rather than a jury of everyday citizens. The arbitration provision in Massage Envy was contained within a sixteen-page Terms of Use Agreement Ms. Doe was handed when she checked in for her massage appointment.

Sadly, while arbitration is generally favored by the courts, Massage Envy, it can and should be challenged. Because arbitration is highly disfavored by plaintiffs, who prefer their day in court, a significant amount of case law has been developed over the years through challenges. This is the subject of another blog.

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Contact us at 305-758-4900 or by email to learn your legal rights.