course and scope - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. // Avoiding Workers’ Compensation Immunity by Estoppel — Not So Fast!

Jeffrey P. Gale, P.A. — Mon, 12 Feb 2024 20:24:39 GMT

Florida’s civil liability and workers’ compensation systems handle legal matters for people injured or who have died in accidents. The systems have some similarities and differences. The biggest differences are that the plaintiff must prove fault to recover under civil law, and recoveries for non-economic damages (such as pain and suffering) are not available in workers’ compensation cases. It is not always obvious which remedy route is the best to follow. Most of the time, the aggrieved party does not have a choice.

Employers and fellow-employees are immune from civil lawsuits for work-related accidents. See sections 440.10 and 440.11, Florida Statutes. In other words, the workers’ compensation system is the harmed individual’s exclusive remedy.

Exceptions arise when the employer has failed to secure the payment of workers’ compensation (440.10(1) and 440.11(1)(a)), the employer commits an intentional tort (440.11(1)(b), or the fellow-employee acts with willful and wanton disregard or unprovoked physical aggression or with gross negligence (440.11(1)).

Another exception may apply when 1) the employer makes a representation of a material fact that is contrary to a later-asserted position; 2) the harmed worker relies on that representation; and 3) the worker is damaged by changing his or her position in reliance on said representation. See Specialty Emp. Leasing v. Davis, 737 So. 2d 1170, 1172 (Fla. 1st DCA 1999) (quoting Dep’t of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1981)). This exception is known as equitable estoppel.

In McNair v. Dorsey, 291 So.3d 607 (Fla. 1st DCA 2020), McNair was injured while carrying a tree branch to a wood chipper. The employer first asserted that there was “no compensable accident.” In a later pretrial stipulation, the employer claimed that no compensable accident occurred, and took the position that McNair’s accident did not occur within the course and scope of his employment.

After withdrawing his workers’ compensation claim, McNair instituted an action in circuit court alleging negligence on the part of his employer and a fellow-employee. The employer filed a motion for summary judgment alleging that the “accident occurred within the course and scope of [McNair’s] employment,” and that they were therefore entitled to workers’ compensation immunity. McNair argued estoppel. The employer’s motion was granted and the order granting the summary judgment was affirmed on appeal.

The First District Court of Appeal began its analysis by recognizing the applicability of estoppel in workers’ compensation cases:

Florida courts have held that “an employer may be equitably estopped from raising a workers’ compensation exclusivity defense if the employer denies the employee’s claim by asserting that the injury did not occur in the course and scope of his or her employment.” Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545, 547 (Fla. 3d DCA 2010) (citing Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st DCA 2009)).

The court then proceeded to explain why estoppel did not apply in the case. It did so by distinguishing its facts from those in Byerley v. Citrus Publ’g, 725 So. 2d 1230 (Fla. 5th DCA 1999). It pointed out that Armstrong, the employer, asserted that “no work accident causing injury occurred at all,” id. at 610, while the employer in Byerley claimed that the “injury did not arise out [of] the course and scope of [Byerley’s] employment,” because it occurred after she “clocked out and had exited the building.” Id. at 1231.

After Byerley’s employer claimed that the accident did not happen in the course and scope of his employment, Byerley sued the employer in circuit court alleging negligence. The employer asserted that Byerley’s exclusive remedy was workers’ compensation. The trial court agreed, granting summary judgment in favor of the employer. Finding that the employer’s position created a Hobson’s choice for Byerley, the appellate court reversed the lower court’s ruling:

We think it would be inequitable for an employer to deny worker’s compensation coverage on the ground that the employee’s injury did not arise out of the course and scope of employment, then later claim immunity from a tort suit on the ground that the injury did arise out of the course and scope of employment. This argument, if accepted, would eviscerate the Workers’ Compensation Act and allow employers to avoid all liability for employee job related injuries.

By making a representation of a material fact that is contrary to a later-asserted position, the employer in Byerley met the first prong of the equitable estoppel formula. This is not what happened in McNair. As explained by the court:

McNair’s claimed accident, if it happened as he alleged, certainly occurred in the course and scope of his employment. Armstrong’s claim was that no accident causing injury occurred at all. Either the factfinder would determine that the accident occurred, in which case it was indisputably within the course and scope of employment, or that the accident did not occur, in which case there was no compensable injury.

The McNair court was also guided by Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545, 547 (Fla. 3d DCA 2010) (citing Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st DCA 2009)). Bayardo Gutierrez (“Gutierrez”) filed a petition seeking workers’ compensation benefits from his employer, Coastal, for injuries sustained while lifting concrete blocks. In response to the petition for benefits, Coastal denied the claim in its entirety including that Gutierrez’s condition “is not the result of an injury by accident arising out of and in the course and scope of employment.” Specifically, the denial of benefits stated:

The carrier has denied the claim in its entirety. The claimant did not report the alleged injury to the employer in a timely manner, as required by F.S. 440.185(1). The present condition of the claimant is not the result of an injury by accident arising out of and in the course and scope of employment. There is no accident or occupational disease. The condition complained of is not the result of an injury, as defined by F.S. 440.02(1). The claimant’s medical condition is the result of a pre-existing condition or disease. The claimant’s medical condition is personal, pre-existing and/or idiopathic in nature.

Following this denial, the claimant instituted a circuit court civil action against the employer sounding in negligence. On summary judgment, the trial court denied the employer’s workers’ compensation immunity affirmative defense. Finding that Coastal, the employer, “has taken inconsistent positions,” The First DCA affirmed the order.

The case law on the subject can be confusing. The denial language used by the employer in McNair is similar to the reasons stated in Byerley and Coastal Masonry. However, the results are very different. It appears that the courts dig behind the language to determine the actual reasons for the denials. Practitioners need to do the same before jumping to the conclusion that estoppel will be deemed.

Equitable estoppel arises infrequently in workers’ compensation cases. It is usually clear whether or not the claimed accident happened in the course and scope of employment, so employers rarely deny for that reason. Second, pursuing a civil remedy may not always be the wisest course of action to follow. In civil cases, the burden is on the plaintiff to prove negligence. In many workplace accidents, nobody is at fault. In workers’ compensation cases, fault does not have to be demonstrated; it’s a no-fault system. Finally, the quality, quantity, and timing of medical and wage loss benefits available through workers’ compensation sometimes surpass those available under the civil system.

The issues discussed in this blog can have substantial consequences. It is strongly recommended that advice of counsel be sought before the issues arise.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) 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.

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. // Florida Workers’ Compensation — Compensability of Accidents During Lunch Break

Jeffrey P. Gale, P.A. — Thu, 27 Jul 2023 17:39:59 GMT

Our client, a construction site supervisor, was injured off-premises at the end of his lunch break. The beginning and end of lunch were signaled by a loud horn. He and his brother traveled by car to a nearby 7-11 to purchase lunch items. They returned to the area near the worksite to eat lunch in the parked car. When the return-to-work horn sounded, our client went to the trunk of his car to retrieve his hard hat and safety harness. As he was standing there, the car behind him was struck from behind by another vehicle and pushed into him, causing him to be crushed between that vehicle and his own. He sustained significant injuries requiring a one-week stay in Ryder Trauma Center in Miami.

Initially, the workers’ compensation insurance carrier balked at accepting compensability of the injury. Its position was that since the accident happened offsite during a lunch break, it did not arise out of and in the course and scope of our client’s employment. After studying the case law and gathering more facts, the carrier reversed course.

For an injury to be compensable under Florida’s workers’ compensation system, it must arise out of and in the course and scope of one’s employment. The indicia for making this determination was articulated by the Florida Supreme Court in Fidelity & Casualty Co. of New York v. Moore, 143 Fla. 103, 196 So. 495, 496 (1940):

“[1] there must be some causal connection between the injury and the employment or [2] it must have had its origin in some risk incidental to or connected with the employment or that [3] it flowed from it as a natural consequence. Another definition widely approved is that [4] the injury must occur within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it.”

In Johns v. State of Florida, Dept. of Health, 485 So. 2d 857 (Fla. 1st DCA 1986), the claimant was assaulted in the lobby of her place of employment 20 to 30 minutes prior to the beginning of her shift. She sued her employer for negligence, positing that she was not within the course and scope of her employment when the assault occurred. On a motion for summary judgment, the trial court disagreed. The order of the trial court was affirmed on appeal.

In support of its opinion, the First DCA noted that appellant customarily arrived 20-30 minutes early to avoid being late, that the lobby was normally used by employees, and she had no personal reason for being there. The court distinguished these circumstances from those in Aloff v. Neff-Harmon, Inc., 463 So.2d 291 (Fla. 1st DCA 1984), a case in which the appeals court reversed a summary judgment for the employer where the employee stayed several hours after the closing of a bar where she was a waitress to discuss primarily personal matters with her employer.

In my estimation, our case more closely approximates the Johns case and qualifies under most if not all of the criteria articulated in the Moore case. Apparently, the carrier feels the same way.

These cases are especially fact sensitive and there is plenty of case law on the subject.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. // Consider Gross Negligence to Avoid Florida Workers’ Compensation Immunity

Jeffrey P. Gale, P.A. — Tue, 20 Sep 2022 18:50:03 GMT

During every initial workers’ compensation client interview, I spend time explaining that Florida’s workers’ compensation system does not pay benefits for non-economic damages such as pain and suffering. Most people don’t know this. I reiterate the point during various stages of the case, especially as we approach settlement discussions. Nothing prevents fair and reasonable settlements more than expectations based on misapprehensions of the law.

The statutory authority for this limit on non-economic damages in workers’ compensation cases is found in Florida Statute 440.11(1):

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death….

The “at law” provision encompasses non-economic damages, and the limitation is commonly referred to as “workers’ compensation immunity.” Injured workers bound by this provision are limited to receiving medical and indemnity benefits through the workers’ compensation system contained in Chapter 440 of Florida’s statutes.

“[A]t law” non-economic damages are available in personal injury cases. A key element of every personal injury case is that the harm resulted from, at a minimum, another person’s or entity’s negligence. 440.11 bars personal injury claims against co-workers and employers for mere negligence. This is “workers’ compensation immunity.”

440.11’s ban against non-economic damages is not absolute. The exceptions are set forth in subsections 440.11(1)(a)&(b). In pertinent part:

Exceptions applicable to the employer:

(1)(a) If an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death.

(1)(b) (b) When an employer commits an intentional tort that causes the injury or death of the employee.
Exceptions applicable to fellow employees:

(1) The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment. (Bold added.)

The rest of this blog will address the “gross negligence” exception applicable to fellow employees.

The policy behind workers’ compensation immunity was described in Fleetwood Homes of Florida, Inc. v. Reeves, 833 So.2d 857 (Fla. 2nd DCA 2002). As the opinion makes clear, it is not supposed to be easy to overcome the immunity:

The history of the workers’ compensation system demonstrates that the legislature intended to give coworkers and employers immunity from suit except in extraordinary situations. Such immunity not only limits the expense of doing business in Florida over and above the admittedly significant expenses of the workers’ compensation no-fault system, but also helps maintain a better work environment in which coworkers are not constantly in fear of being sued by their fellow employees. The legislature has thus created an exclusive, administrative, no-fault remedy that is unaffected by comparative negligence in exchange for broad immunity from lawsuits for employers and coworkers.

Florida courts have struggled with defining gross negligence. As Justice England stated in Ingram v. Pettit, 340 So.2d 922 (Fla.1976), “[o]ur jurisprudence reflects a history of difficulty in dividing negligence into degrees.” Id. at 924. A similar observation was expressed a few years before in Glaab v. Caudill, 236 So.2d 180 (Fla. 2d DCA 1970) by Judge McNulty: “At the outset, we recognize that articulating the concept of gross negligence has always been difficult….” Id. at 180. He proceeded to formulate this definition:

By definition, it is now rudimentary that gross negligence is that act or omission which a reasonable, prudent man “would know would probably and most likely,” result in an injury to another; and, from a standpoint of degree, it is clear that gross negligence lies between simple negligence and the “wilful and wanton” conduct sufficient, if death results, to constitute “culpable negligence” within the crime of manslaughter.

Glaab, 236 So.2d at 182-83.

Judge McNulty suggested a three-prong workable set of criteria to assist in the determination of prima facie gross negligence:

the existence of a composite of circumstances which, together, constitute an imminent or clear and present danger;
chargeable knowledge of the danger; and
an act or omission, evincing a conscious disregard of consequences that is more than simple carelessness.

Glaab, 236 So.2d at 183. As to this last factor, Glaab suggested that the probability that the consequences will result in injury must be “more than a real possibility, though not necessarily better than a 50-50 probability.” Glaab, 236 So.2d at 184.

Our office recently undertook the representation of a gentleman who was severely injured at work when he tried to prevent loaded carts in a trailer from rolling onto the dock and striking co-workers. Because of a faulty design, trailers backed up to the loading dock sat at an incline. By force of gravity, the loaded carts were always trying to push their way out of the trailer. There had been numerous mishaps in the short period of time the warehouse was being used. Management was aware of the dangerous condition, but failed to do anything about it because of the high modification costs.

We are handling the gentleman’s workers’ compensation case against the employer and investigating the potential gross negligence case against his supervisors and managers.

In conclusion, injury attorneys must consider every avenue of recovery for their clients. While solid opportunities to circumvent workers’ compensation immunity against employers and fellow-employees are rare, due consideration should nevertheless be given in every case.

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