Cases

Employee of sub subcontractor injured on the job filed civil cause of action against general contractor for damages sustained in accident.  The injured worker never asserted a claim for workers' compensation benefits but rather filed a direct action against the general contractor in circuit court.  It was undisputed that both the general contractor and the subcontractor had workers' compensation coverage although the sub sub contractor, the employer of the injured worker, did not.  The general contractor did not report the accident to its workers' compensation carrier.  General contractor filed a Motion for Summary Judgment asserting the exclusive remedy doctrine precluding this civil cause of action.  The plaintiff/employee claimed that the general contractor's failure to notify it workers' compensation carrier that the claimant was injured estopped the general contractor from asserting the exclusive remedy doctrine defense.

Once the employer acquires and maintains workers' compensation insurance for the benefit of its employees, it is immune from suit in accordance with Section 440.11(1), Florida Statutes.  There is no requirement that the workers' compensation carrier actually pay benefits in order to invoke the exclusive remedy doctrine for the insured employer.  This doctrine also applies to statutory employers of injured employees of subcontractors that provide coverage to subcontractors or ensures that a subcontractor has secured workers' compensation. 

This case was distinguished from the court's decision in Ocean Reef Club, Inc., v. Wilczewski, 99 So. 3d 1 (Fla. 3rd DCA 2012) in which no contractors or subcontractors were involved.  In the Ocean Reef case, the employee sued the employer for work related illnesses and because the employer failed to notify its workers' compensation insurance carrier of the claim, the court determined that the employer was estopped from asserting workers' compensation exclusive remedy immunity.  So long as the general contractor ensures that coverage is maintained covering its statutory employees, there is immunity from a civil cause of action.  If payment of compensation has been secured by the general contractor either directly (through a policy of insurance issued to the general contractor covering employees of subcontractors) or through the subcontractor individually, a recovery for injury or death arising out of and in the course of the contract work is exclusively under the workers' compensation law.

On en banc consideration, court corrected dicta in the opinion of Catalfumo Construction LLC v. Varella, 28 So. 3d 963 (Fla. 3rd DCA 2010). Court receded from the statement in the Catalfumo case that the general contractor must ensure that workers' compensation benefits are actually paid by a workers' compensation carrier as opposed to just securing coverage in order to take advantage of the exclusive remedy protection.  The court reaffirmed its conclusion in this case that such protection is afforded simply by securing workers' compensation coverage.