Cases

This was a decision by the Third District Court of Appeals.Claimant suffered accident on the job and sought payment of workers' compensation benefits which were paid by the employer/carrier. Thereafter, the employer terminated the claimant's employment because of "long term absenteeism." Civil cause of action filed pursuant to Section 440.205, Florida Statutes, alleging that the claimant was terminated by reason of her valid claim for workers' compensation benefits following her on-the-job injury. Jury verdict returned in favor of claimant and this appeal was taken.

The basis of the appeal was that the court should have granted a Motion for Summary Judgment and Motion for Directed Verdict in favor of the employer prior to the case being referred to a jury for determination. Court determined that a directed verdict is proper only when the record conclusively shows an absence of facts or inferences from facts to support a jury verdict, reviewing the evidence in light most favorable to the non-moving party. The court determined that generally speaking, an employer does not announce or state in writing that it is discharging an employee because he or she has filed a workers' compensation claim.  Accordingly, employee actions for a retaliatory discharge under Section 440.205, F.S., are often ill-suited for final disposition on a Motion for Summary Judgment.  Court affirmed lower court's denial of Motion for Directed Verdict or Motion for Summary Judgment.

The employer is not estopped from asserting workers' compensation immunity where, in compensation proceedings, the employer asserted that there was no work accident causing injury and the accident occurred outside the scope of employment.  An employer is not estopped from asserting workers' compensation exclusivity merely because it had denied compensability of an alleged workplace injury.  Employer is entitled to litigate whether a compensable accident occurred in a workers' compensation forum.

(4th DCA) Lower court granted employer/carrier's Motion for Summary Judgment in regards to employee's claim of retaliatory discharge under Section 440.205, Florida Statutes.  Basically, the lower court found no prima facie case of retaliation because the employer terminated the employee before the employee filed a claim for workers' compensation benefits.  Because a material issue of fact existed as to the employer's reason for discharging the employee, court determined that summary judgment was not proper at this juncture of the case.  Accordingly, lower courts granting of final summary judgment was reversed.

There was a dispute in regards to why the claimant/employee was terminated by the employer.  In order to make a prima facie case of retaliation, a plaintiff must prove the following three elements: 1) the plaintiff was engaged in protected activity; 2) the plaintiff was thereafter subjected by his employer to an adverse employment action; and 3) there is a causal link between the protected activity and the adverse employment action.  In order to establish a claim under Section 440.205, F.S., the employee's pursuit of workers' compensation need not be the only reason for discharge.

The fact that the employee did not file a formal claim for workers' compensation benefits until after his termination does not automatically preclude a claim for retaliatory discharge.  Accordingly, the plaintiff in this case established a prima facie case by proving the protected activity and the negative employment action were not completely unrelated. The burden then shifts to the employer to offer a legitimate reason for the adverse employment action.  The employer testified that the claimant was discharged because he threatened a co-worker.  The plaintiff denied such activity.  Accordingly, there was a genuine issue of material fact precluding the entry of a summary judgment.

(Second DCA) This case involved the question of workers' compensation immunity in a civil cause of action as provided for in Section 440.10(1)(b), Florida Statutes, and whether the parties to the cause of action qualified as contractors/subcontractors and were entitled to workers' compensation immunity based on the theory of horizontal immunity.  In order for horizontal immunity to apply, the entity alleged to be the contractor must have incurred a contractual obligation with a third party, a part of such obligation being delegated or sublet to a subcontractor whose employee is injured.  In this case, there was no evidence that the alleged contractor was performing any work, of any kind, on behalf of any third party. To the contrary, the evidence reflected that the alleged contractor was acting on its own behalf as the owner of the property in question where the accident occurred.  Accordingly, the court determined that the lower court erred in granting exclusive remedy protection of the workers' compensation statute based on a contractor/subcontractor relationship since the alleged contractor had no obligation under a third party contract to perform the work.

The claimant was injured in a workplace accident and was paid workers' compensation benefits.  Medical care was provided.  Medical service providers attempted to collect from the injured worker the amounts of the bills for medical services rather than pursuing a claim agains the carrier.  The claimant filed a civil cause of action against the medical service providers pursuant to Section 559.77(1), F.S., the Florida Consumer Collection Practices Act (FCCPA).  The court dismissed this cause of action since the workers' compensation statute grants exclusive jurisdiction over any matter concerning reimbursement to the Florida Department of Financial Services and therefore, this cause of action under the FCCPA was precluded.  On appeal, these dismissals were reversed and the court held that the claimant's assertion of liabilty under Section 559.77(1), F.S., was not precluded.  The allegations of the claimant's complaint asserted violations of the FCCPA, Section 559.72(9), F.S., for attempting to collect an illegitimate debt and Section 559.72(5), F.S., for disclosing false information to a collection agency.  This determination was made based upon several factors utilized by courts in the interpretation of statutes. Reference to this opinion should be made for a discussion of these factors.

The court certified to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v): Does Section 440.13(11)(c) of the Florida Workers' Compensation Law preclude circuit court jurisdiction over claims under Section 559.77(1) of the Florida Consumer Collection Practices Act? 

Deceased plaintiff's (employee's)personal representative sued plaintiff's employer and co-employee for a workplace accident that resulted in the deceased employee's death.  Trial court granted Motion for Summary Judgment in favor of Defendant employer and co-employee.  On appeal, Summary Judgment in favor of employer affirmed.  Cause of action against co-employee reversed in view of the conflict in testimony.

Employer responsible for damages in this case if the accident was caused by an intentional tort.  The elements of an intentional tort are: 1) employer knowledge of a known danger based upon similar accidents or explicit warnings specifically identifying the danger that was virtually certain to cause injury or death to the employee; 2) the employee was not aware of the danger because it was not apparent; and 3) there was a deliberate concealment or misrepresentation by the employer preventing the employee from exercising an informed judgment as to whether to perform the work that resulted in the employee's death.  In this case, there was no evidence indicating that the deceased employee was not aware of the danger in operating the piece of equipment that resulted in his death.  There are some types of machines that are so obviously inherently dangerous that the danger must be obvious to anyone working in the vicinity of where the machine was being utilized.

In order to establish a claim against a co-employee, evidence was required to establish each of the following three elements: 1) circumstances constituting an imminent or clear and present danger amounting to a more than normal or usual peril; 2) knowledge or awareness of the imminent danger on the part of the co-employee, and 3) an act or omission on the part of the co-employee that evidences a conscious disregard of the consequences.  In this case, the co-employee had directed the deceased employee into the machine in question for cleaning and later activated the machine without utilizing any of the safety systems normally utilized by workers using this equipment.

Plaintiff in this case elected to be exempt from workers' compensation coverage as a corporate officer.  Plaintiff worked as an employee of a subcontractor.  Under the terms of the contract between the owner of the property and general contractor, the general contractor and its subcontractors were required to maintain workers' compensation coverage.  Plaintiff provided a copy of the Certificate of Exemption to other subcontractors but the general contractor was not notified.  Claimant alleged severe injuries as a result of the alleged negligence of a co-employee following a work related accident.  The question in this case was whether the plaintiff who was the statutory employee of the general contractor could file a cause of action against the general contractor when the plaintiff had exempted himself out of the workers' compensation system by filing an exemption as a corporate officer.  Lower court determined that general contractor was immune from this cause of action based upon the exclusive remedy provisions of the Workers' Compensation Act.  The question is whether this exclusive remedy protection can be claimed when the Plaintiff exempts himself out of the workers' compensation system.

Plaintiff argued that by electing the corporate officer exemption, he was in effect removing himself from the entire workers' compensation scheme and opening the door to actions in tort against individuals and entities who would otherwise be entitled to workers' compensation immunity.  Section 440.075, Florida Statutes, only permits an exempt corporate officer to proceed against "the corporate employer" that common law in action to recover damages for injury or death.  However, this does not apply to the general contractors or subcontractors that were not actual employers but rather special employers. 

In order to establish a prima facie case of a workers' compensation retaliation claim under Section 440.205, Florida Statutes, the plaintiff must prove the following elements: 1) a statutorily protected activity, 2) an adverse employment action, and 3) a causal connection between the statutorily protected activity and the adverse employment action.  Defendant filed a Motion to Dismiss plaintiff's second amended complaint for failure to plead a facially sufficient retaliation claim.  There was no question in this case that elements 1 and 2 were sufficiently pled.  The question was whether the causal connection element was sufficiently pled. 

Court determined that the temporal connection between a protected actitivy and the adverse employment action in itself might be sufficient to establish a causal connection. However, the temporal time proximity must be close.  In this case, there was an allegation of temporal proximity between the employer's knowledge of the protected activity and the adverse employment action that was sufficient evidence of causality to establish a prima facie claim of retaliation.  Lower court's granting of dismissal for failure to plead a cause of action.

Deceased employee worked for employer/defendant where he was allegedly exposed to hazardous material and allegedly as a result, subsequently died of cancer. The decedent's wife sought to obtain workers' compensation benefits from the employer but was advised that her "husband's illness was not a work related illness."  In response to the petition for workers' compensation benefits, the employer filed a Notice of Denial stating that "entire claim denied as claimant's employment is not the major contributing cause of his death."  Upon receipt of the Notice of Denial, the deceased employee's estate voluntarily dismissed the workers' compensation petition and filed a wrongful death suit against the defendant employer.  Lower court entered summary judgment based on exclusive remedy of workers' compensation statute. The question in this case is whether the defendant employer was estopped from claiming workers' compensation immunity because of the denial of workers' compensation benefits.

Appellate court review on a summary judgment motion is de novo.

Florida Workers' Compensation Statutes provide a strict liability system of compensation for injured workers.  In return, an employee is generally precluded from bringing a common law negligence action.  However, where injuries are not encompassed within the Workers' Compensation Act, the employee is free to pursue his or her common law remedies.  If an employer takes the position in a workers' compensation proceeding that the employee is not owed workers' compensation because the injury did not occur within the course and scope of employment or that there was no employment relationship, the employer may be subsequently estopped from claiming immunity on the grounds that the workers' compensation exclusive remedy was workers' compensation.  However, if an employer merely states a defense within the workers' compensation proceedings, an employer may not be estopped from later asserting immunity.

The employer alleged that the position taken in the workers' compensation proceeding was a "medical causation" defense and by asserting such, it was not taking inconsistent position to that taken in the civil cause of action estopping the employer from asserting the exclusive remedy doctrine defense.  The court, however, determined that this defense only applies when the accidental compensable injury is not the major contributing cause of a resulting injury.  On the other hand, if there was a denial of an entire claim because of the claimant's employment altogether (not accpeting the fact that there was a compensable injury), this would be inconsistent and would estop the assertion of the exclusive remedy doctrine defense in the civil cause of action.  Because it was unclear as to the position taken by the employer in this workers' compensation case, summary judgment entered by lower court reversed since there was a question of fact in interpretation as to the position being taken by the employer and whether that position estopped it from asserting the exclusive remedy defense.

Per Curiam. Affirmed. Concurring in part and dissenting in part.  Opinion related to workers' compensation immunity and intentional torts exception.  See Section 440.11(1)(b), Florida Statutes.

Opinion stated that it was error to enter summary judgment in favor of defendant employer while important discovery was still pending.  Discovery had been delayed because of the fact that the defendant employer had filed for bankruptcy and the plant records and machinery had been sold to a third party who in turn resold it to another party.  Many of the corporate records could not otherwise be obtained.  Where discovery is not complete, the facts are not sufficiently developed to enable the trial court to determine whether genuine issues of material fact exist.  Summary judgment is premature where there has been insufficient time for discovery or where a party through no fault of his own has not yet completed discovery. 

An employee is entitled to the same immunity in regards to a civil cause of action as the employer unless 1) employee acts with willful and wanton disregard, unprovoked physical aggression, or gross negligence, or 2) the employee and the injured employee are assigned primarily to unrelated works. See Section 440.11(1)(b)2, Florida Statutes. The unrelated works exception to the rule of general immunity applies only to co-employees. This exception only applies to employees expressly excluding the subcontractor who secured payment of compensation coverage for its employees.

The employee against whom a civil cause of action was filed in this case was employed by an employer who had secured workers’ compensation coverage. Accordingly, the unrelated works exception did not apply in this instance. This interpretation is separately confirmed by referring to Section 440.10(e), Florida Statutes (2014), which is a specific provision relating to immunity for subcontractors.

Since the unrelated works exception did not apply in this instance, the next question was whether gross negligence existed in this case. Gross negligence requires: 1) circumstances constituting an imminent or clear and present danger amounting to a more than normal or usual peril, 2) knowledge or awareness of the imminent danger on the part of the tortfeasor, and 3) an act or omission that evinces a conscious disregard of the circumstances. In summary judgment proceedings, the appellate court determined that a jury could not find that the alleged tortfeasor was grossly negligent on the facts in this record. The facts in this case created a possibility of harm but did not create a condition in which an accident would probably and most likely occur which is required to prove gross negligence. Such conduct did not rise to a conscious disregard of the consequences required for gross negligence.

(Third District Court of Appeals) Original plaintiff in cause of action filed civil claim against the employer.  Employer asserted the exclusive remedy defense of the Workers' Compensation Act as provided for in Section 440.1, Florida Statutes.  Plaintiff took the position that the exclusive remedy doctrine was facially unconstitutional under the United States and Florida Constitutions.  The Florida Workers' Compensation Advocates (FWA) filed a Motion to Intervene as an additional plaintiff also asserting the unconstitutionality of Section 440.11, Florida Statutes.  Ultimately, the original plaintiff and defendant were dismissed and intervenor FWA sought a declaratory judgment concerning the statutory provision's constitutionality.  The Circuit Court Judge determined that the statutory provision was unconstitutional and this decision was appealed by the State of Florida.

On appeal, the Third DCA overturned lower court's determination that the statute was unconstitutional.  Court refused to rule on the constitutionality of Section 440.11, Florida Statutes, determining that once the original plaintiffs were dismissed, the case lost 1)  the essential elements of a justiciable "case or controversy," 2) an identifiable and properly-joined defendant, and 3) a procedurally improper vehicle for the trial court's assessment of the constitutionality of Section 440.11, Florida Statutes.  The intervening appellees lack standing to assert that the challenged provisions of the Florida Workers' Compensation Laws are unconstitutional.

Plaintiff's employer entered into an employee leasing arrangement with appellant leasing company. Pursuant to that agreement, there was an arbitration clause which required that any dispute with the leasing company be arbitrated in Texas.  Plaintiff was injured in a work related accident and his employment was terminated shortly thereafter.  Plaintiff then sued the leasing company for wrongful termination claiming that the reason he was terminated was because he made a valid claim for workers' compensation benefits.  The question in this claim is whether the arbitration clause requiring arbitration in Texas applied in this instance to the plaintiff's claim for wrongful termination.  Trial court denied leasing company's Motion to Compel Arbitration ruling that the arbitration provision was invalid because it did not exclude workers' compensation proceedings from its scope and it violated public policy by requiring an hourly wage employee to arbitrate an employment dispute in a state other than Florida.  The standard of review for denial of a Motion to Compel Arbitration is de novo. 

Under both federal and state law, there are three elements to consider in ruling on a Motion to Compel Arbitration of a given dispute: 1) whether a valid written agreement to arbitrate exists; 2) whether an arbitrable issue exists, and 3) whether the right to arbitration is waived.  It is for the court, not the arbitrator, to determine whether a valid written agreement to arbitrate exists.  It is also for the court and not the arbitrator to determine whether an arbitration agreement violates public policy. 

An agreement to arbitrate future disputes in another jurisdiction is outside the authority of the Florida Arbitration Code and therefore renders the agreement to arbitrate voidable at the instance of either party.  If, however, the Federal Arbitration Act applies to the agreement, a Florida court must enforce a valid arbitration clause which provides for arbitration in a foreign state.  The Federal Arbitration Act applies to a transaction that in fact involves interstate commerce even if the parties did not intend the transaction to have an interstate commerce connection.  The court in this case determined that the employment transaction between the plaintiff and the leasing company involved interstate commerce and accordingly, the arbitration clause to arbitrate outside of the state of Florida was enforceable. 

An agreement to require arbitration of a workers' compensation retaliation claim is not violative of public policy.  The court determined that a claim for workers' compensation benefits is distinct from a cause of action of retaliatory discharge under Section 440.205, Florida Statutes.  Because the Federal Arbitration Act applied, the fact that the agreement provides for arbitration in another state is not grounds for invalidating it. 

Court also determined that the leasing company did not waive its right to arbitrate the retaliatory discharge claim in another state.  The leasing company took no action that was inconsistent with its right to arbitrate the plaintiff's retaliatory discharge claim.  The filing of a workers' compensation claim for workers' compensation benefits did not constitute a waiver of the right to arbitrate a retaliatory discharge claim. 

Finally, the plaintiff did not establish any defenses to arbitration such as duress or unconscionability.

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.

Plaintiff filed retalitory discharge cause of action against employer under Section 440.205, F.S.  Final summary judgment was entered in favor of the defendant employer.  On appeal, summary judgment reversed since there existed genuine issues of material fact precluding entry of a summary judgment.

Court determined that the standard of review for an order granting a Motion for Summary Judgment is de novo.  Summary judgment is proper only if 1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered and 2) the moving party is entitled to a judgment as a matter of law.  If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.

Section 440.205, F.S., precludes an employer from discharging, threatening to discharge, intimidating or coercing any employee by reason of such an employee's valid claim for compensation or attempt to claim compensation under the workers' compensation law.  In order for an employee to prove a violation of this provision, three elements are required:  1) the employee engaged in statutorily protective activity 2) An adverse employment action occurred; and 3) the adverse action and the employee's protected activity were causally related.  In order to establish a claim under Section 440.205, F.S., the employee's pursuit of workers' compensation need not be the only reason for discharge.  A cause of action under this provision may exist even if there may also be other reasons for a discharge.  The actual discharge is not a condition for such a claim since there is a cause of action for intimidation or coercion even in the absence of a discharge.  The employee need not establish a specific retalitory intent in order to prevail.  Once a plaintiff establishes a prima facie case for proving a cause of action, the burden of proof shifts to the employer to proffer a legitimite reason for the adverse employment action.

The court determined that there were genuine issues of fact concerning the liability of the employer for a Section 440.205, F.S. cause of action if the reasons for discharging the claimant were questionable.  The employer asserted that the injured worker was discharged because he failed to obtain a report from his authorized treating physician concerning his medical condition and fitness to return to work.  According to the employer, this amounted to neglect of duty warranting discharge.  However, the obtaining of medical information on the claimant's ability to return to work following a workers' compensation accident is not the responsibility of the injured worker but rather the employer.  Basically, the employer discharged the injured worker for allegedly failing to perform a function that was the obligation of the employer.  There was also evidence of the fact that the doctor's report was in fact sent to the employer. 

The injured worker was also discharged by the employer allegedly because he was absent from work without leave.  However, the employee testified that because of medication that he was taking, he could not perform his responsibility on the job and the supervisor instructed the claimant to leave work and return home.

There was also emails in the employer's records of the negative attitude toward the injured worker by his supervisory personnel.  The case was referred to the state for the investigation of alleged insurance fraud.  Based upon this evidence, the court determined that the injured worker's discharge be determined by a jury to be pretextual.

In support of the Motion for Summary Judgment, the employer asserted that a significant period of time lapsed between the claimant's filing of a workers' compensation claim and his discharge thus proving that there was no causal connection between the claimant's protected activity of filing a workers' compensation claim and the adverse employment action of discharging him.  Notwithstanding this, the court determined that the plaintiff/injured worker would still be entitled to a trial. 

The court determined that employee actions for a retalitory discharge claim under Section 440.205, F.S., are often ill suited to final disposition on a Motion for Summary Judgment.  Since the employer failed to establish the non-existence of a material fact concerning whether the injured worker's discharge was causally related to his filing of a workers' compensation claim, it was error to grant the Summary Judgment in favor of the employer in this instance.

Plaintiff injured in workplace accident and received workers' compensation benefits from his employer.  Thereafter, plaintiff brought civil cause of action against owner of leased premises.  The owner of the leased premises filed third party action against employer and the question in this case was whether the exclusive remedy provisions of the workers' compensation statute precluded the third party claim filed by the owner of the premises against the employer.  The original cause of action against the owner of the leased premises was based on the fact that the premises allegedly was negligently maintained and this caused the accident to the injured worker.

Based on the case of Sunspan Engineering and Construction Company v. Spring-Lock Scaffolding Company, 310 So. 2d 4 (Fla. 1975), the exclusive remedy provisions of the workers' compensation law were unconstitutional as applied to barr a third party plaintiff's common law action for indemnification against a negligent employer and accordingly, such third party claim is not barred by the exclusive remedy provisions of the workers' compensation statute.  Such right of a third party action against the employer is not restricted by the allegations made by the injured plaintiff/employee namely that the third party was actively negligent.  Though a third party has a right to sue an employer, to state a claim for common law indemnity, a party must allege that he is without fault, that another party is at fault, and that a special relationship between the two parties makes the party seeking indemnification vicariously, constructively, derivatively, or technically liable for the acts or omissions of the other party.  In this case, the third party did not properly plead a claim for common law indemnity because he failed to allege the existence of any special relationship between himself and the employer that would make the third party vicariously, constructively, derivatively or technically liable to the plaintiff/employee because of the employer's neligence or fault.

As a part of the claim for indemnfication, the alleged third party tortfeasor brought cause of action against employer based on a contractual term between the parties that required the employer to name the third party as an additional insured on the employer's general liability policy or its self-insurance policy.  However, since the third party's claim for common law indemnification failed to state a cause of action, the related claim for breach of contract for failure to maintain insurance may not be maintained as a third party claim.

4th DCA.  The standard of review of an order granting summary judgment is de novo.  When reviewing an order granting summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party.  It is the burden on the party moving for summary judgment to prove conclusively the complete absence of any genuine issue of material fact.

The question in this case related to whether the plaintiff was deemed to be an employee of a subcontractor, providing exclusive workers' compensation immunity in a civil cause of action against the general contractor.  In particular, this case concerned whether the plaintiff qualified as an owner/operator of a motor vehicle that transported property under a written contract with a motor carrier in accordance with Section 440.02(15)(d)4, Florida Statutes.

In this case, the alleged owner/operator had contracted with an entity identified as a "broker" and it was alleged by the plaintiff that such broker relationship did not constitute a contract with a motor carrier as referenced in Section 440.01(15)(d)4, Florida Statutes.  It was undisputed that the plaintiff otherwise met the statutory elements of an owner/operator status as referenced in this statutory provision. 

Utilizing the definition of a "motor carrier" as provided in Section 320.01(3), Florida Statutes and federal law, the court concluded that the term "broker" was not included in the definition of a motor carrier.  Also the Code of Federal Regulations definition of a "broker" was utilized by the court in this case in determining that a motor carrier contract did not exist.  Whether a company is a broker or a carrier is not determined by what the company labels itself as but by how it represents itself in the world and its relationship to a shipper.  Because the difference between a carrier and a broker is often blurry, the carrier/broker inquiry is inherently fact intensive and not suited to summary judgment.

Employee of one subcontractor on a job sued an employee of another subcontractor on the same job and the other subcontractor on the same job alleging gross negligence.  Under Section 440.10(1)(e)2, Florida Statutes, gross negligence involving causes of action between employees of subcontractors on a common job is excepted from the exclusive remedy provisions of the Florida Workers' Compensation statute.  In order to establish gross negligence, the plaintiff/employee of one subcontractor must show:  (1)  a composite of circumstances which together constitute a clear and present danger; (2) an awareness of such danger by the other subcontractor; and (3) a conscious voluntary act or omission by the other subcontractor that is likely to result in injury.  Appellate court in this instance reversed summary judgment in favor of defendant/subcontractor finding that there were genuine issues of material fact precluding the entry of a summary judgment.  The transcript considered in regards to the summary judgment proceedings did not substantiate uncontroverted evidence of gross negligence.  There was no transcript of the summary judgment hearing.

On appeal, appellate court reviewed de novo the final summary judgment in favor of defendant employer based on workers' compensation immunity.

Plaintiff's employer is provided immunity from common law negligence suits.  In order to be liable, the plaintiff's employer must be guilty of conduct which was "virtually certain" to result in injury or death in order to overcome this immunity.  This increased standard of conduct means that the injured employee/plaintiff must show that a given danger will result in an accident every or almost every time.  The current immunity statute provides an exceptionally narrow exclusion from immunity requiring intentional deceitful conduct on the part of the employer.

In order to overcome immunity, three elements must be proved by the injured employee: 1) the employer engaged in conduct that the employer knew, based on similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and 2) the employee was not aware of the risk because the danger was not apparent, and 3) the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.  In this case, there was no evidence that prior similar accidents had occurred.  Prior accidents had occurred but not similar to the accident in this instance.  The prior accidents did not concern a similar danger as those involved in this accident. The accident in this instance was caused by the lack of a backup alarm on the truck that backed into the plaintiff/employee.  The court pointed out that the lack of a backup alarm does not with virtual certainty result in injury.  While the lack of a backup alarm would make an injury more likely, the statute demands far more.

The standard for immunity of a fellow employee of the deceased employee is different than that of the employer.  The standard for immunity for the co-employee is as described in Section 440.11(1), Florida Statutes, which does not adopt the same virtual certainty standard for injury that applies to the employer directly.  The standard for co-employee liability is gross negligence which is defined as an act or omission that a reasonably prudent person would know is likely to result in injury to another.  Court in this case determined that there were factual issues concerning the co-employee's liability precluding the entry of a summary judgment in favor of the plaintiff/employee against a fellow co-employee defendant.  Court points out elements as to conduct demonstrating gross neglience.

Claimant filed a retaliatory discharge civil cause of action against employer.  Appellate court determined that it was error for the lower court to enter Order of Summary Judgment in favor of employer where employee's response to the Motion for Summary Judgment contained opposing evidence sufficient to reveal a genuine issue of material fact.

(4th DCA) Where an employer denies a claim for workers' compensation benefits on the basis that the injury did not occur within the course and scope of employment or that there was no employment relationship between the employer and the claimant, the employer may be estopped from asserting in a later tort action that the workers' compensation exclusive remedy was applicable precluding the civil cause of action provided the employee can satisfy the elements of estoppel.  For the possibility of estoppel to arise, however, the employer's assertion of workers' compensation immunity must be clearly irreconcilable with the reason for its initial denial of the workers' compensation claim.  Estoppel is only available when the employer attempts to take inconsistent positions. 

In this case, contractor claimed in the workers' compensation case that the employee of a subcontract was not its statutory employee because of the fact that the real employer was the subcontractor which had workers' compensation coverage.  Court determined that the contractor's position in this instance that there was no employer/employee relationship did not prevent nor was the employer estopped in asserting exclusive remedy defenses in subsequent civil cause of action.

The question in this case is whether the exclusive remedy provisions of the Florida Workers' Compensation Act precluded recovery by the plaintiff.  Section 440.11, Florida Statutes, and 440.02 (15)(c), Florida Statutes, provide that a contractor receives immunity from negligence liability for injuries suffered by an independent contractor working or performing services in the construction industry in exchange for the contractor's statutory obligation to maintain workers' compensation coverage for employees at the construction site.  Court determined that plaintiff in this instance was not a statutory employee of defendant since he was not working or performing services in the construction industry. 

Civil cause of action filed against defendants alleging that the owner of the defendant company touched plaintiff in a sexual manner on multiple occasions, causing her physical and emotional harm.  The complaint in this instance included claims against the defendant for common law causes of action including negligent retention and supervision and vicarious liability and a claim against the owner for battery.  In interpreting the case of Byrd v. Richardson-Greenshields Sac., Inc., 552 So. 2d 1099 (Fla. 1989), the court determined that the common law causes of action in this instance were not precluded by the exclusivity of the Florida Workers' Compensation Act for on-the-job injuries.  Court found conflict between this decision and the Second District Court of Appeal decision in Doe v. Footstar Corporation, 980 So. 2d 1266 (Fla. 2nd DCA 2008) which held that the workers' compensation exclusivity rule barred the plaintiff's common law causes of action against their child's employer for neligent hiring, retention, and supervision and for assault and battery and rape.  Case certified to Florida Supreme Court based on conflict with the Doe decision.

Court determined that employer is entitled to workers' compensation immunity in civil cause of action against employer by former employees under the Water Quality Assurance Act for personal injuries or wrongful deaths allegedly caused by occupational exposures to hazardous substances at employer's manufacturing facility.  Pursuant to Section 376.313, Florida Statutes, a strict liability cause of action exists against owners of real property for damages caused by surface or ground water contaminants on the property.  Under this statute, there is no need to plead or prove negligence on the part of the landowner.  All that is necessary is to prove the fact of a prohibited discharge or owner polluted condition and that it has occurred.  There was no allegation that the employer had intentionally contaminated its property causing injury to plaintiffs which would be an exception to the exclusive remedy provisions of the Workers' Compensation Act.  Case certified to Supreme Court as conflicting with the 1st DCA opinion Cunningham v. Anchor Hocking Corporation, 558 So. 2d 93 (Fla. 1st DCA 1990)  Concurring opinion.

Civil cause of action filed against employer based on an intentional tort exception to workers' compensation immunity.  This intentional tort exception is applicable where the employer is shown to have either exhibited a deliberate intent to injure the claimant or the employer engaged in conduct which is substantially certain to result in injury or death.  Claimant in this case relied upon this second alternative for establishing an exception to immunity, i.e., the employer engaged in conduct substantially certain to result in injury or death.  In utilizing the standards for determining such conduct by the employer as established in the case of Turner v. PCR, Inc., 754 So. 2d 683, the court determined that based on affidavits submitted in support of a Motion for Summary Judgment, the judge erred in entering an order in favor of the employer based on the exclusivity of liability provisions of the Workers' Compensation Act.  The substantial certainty standard applies where there is substantial certainty of either injury or death.  Because of the disputed issues of material fact as contained in the affidavits of the parties, summary judgment should not have been granted in this case.  Case remanded for further proceedings. (statutory change).

Claimant's injuries were not compensable under the Florida Workers' Compensation law because the work related accident was not the major contributing cause of the injuries.  Claimant argued that the major contributing cause standard for determining benefits due under the Workers' Compensation Act was unconstitutional since she was barred from bringing a civil cause of action for negligently inflicting injury in a work related accident under the exclusive remedy provisions of the workers' compensation act.  Court on appeal declined to respond to question since no civil cause of action had been filed against the employer or had the employer raised the affirmative defense of workers' compensation immunity/exclusivity.

Lower court's granting of Summary Judgment in favor of defendant employer affirmed on appeal based on exclusive remedy provisions of the Florida Workers' Compensation Act.  Allegations in the complaint against the employer stated a cause of action based solely on negligence and not on an intentional tort.  There was no allegation that the employer, knew, based on a prior accident or an explicit warning that the employees were in danger of being injured.  The intentional tort exception to employer immunity did not apply in this instance.

The court also determined that the "unrelated works" exception to the exclusive remedy provisions also did not apply. This exception applies where a fellow employee of the injured worker was the cause of the plaintiff employee's injury.  However, in the complaint filed in this instance, there was no reference to a fellow employee's negligence causing the accident.  The unrelated works exception to an immunity defense is an avoidance that must be pled and proved by the plaintiff.  See Rule 1.100(a), Florida Rules of Civil Procedure.  In this instance, there was no mention of the unrelated works exception until plaintiffs' Joint Memorandum in Opposition to Summary Judgment was filed approximately two years after the answer raising the affirmative defense of employer immunity.

2nd DCA. Claimant filed suit in circuit court against workers’ compensation carrier and agent for workers’ compensation carrier for intentional infliction of emotional distress because of a delay in providing benefits as ordered by the Judge of Compensation Claims. Court determined that the Circuit Court had no jurisdiction over an action against a workers’ compensation carrier for injuries covered by the Workers’ Compensation Act.

A workers’ compensation carrier is not immune from wrongdoing that occurs independently of its handling of claims. The exclusive remedy for a claim arising from a delay in the payment of benefits under the Workers’ Compensation Act is in accordance with the Florida Workers’ Compensation Act. The claim in this instance was based entirely on the workers’ compensation carrier’s delay in paying benefits awarded to her by the JCC. Such conduct does not fall within any exception to the statutory immunity afforded the carrier by the Florida Workers’ Compensation Act.
 

The JCC’s order striking plaintiff’s demand for a jury trial also deemed to be error. In an action for damages for retaliatory discharge under the workers’ compensation statute, there is a right to jury trial. In retaliatory discharge action, attorney’s fees are not awardable against an employer in an action for retaliatory discharge.

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Appellate court overturned trial judge's granting of Motion for Summary Judgment which found that the exclusive remedy provisions of the workers' compensation statute precluded recovery by plaintiffs. Summary judgment may only be awarded when the pleadings, affidavits, depositions and other appropriate documents within the court file reflect that there are no genuine issues of material fact and the movant is entitled to a judgment as a matter of law. In this case, there was an issue of fact as to whether the defendants were acting within the course and scope of their employment at the time of this accident as opposed to being liable in their capacity as owners of a dog and accordingly, summary judgment was not appropriate in this instance. Workers' compensation immunity is extended to employees acting in a managerial or policy making position only if the conduct causing the injury was within the scope of those managerial or policy making duties. If there are issues of fact regarding whether the conduct was within the managerial or policy making duties of the supervisory employee who caused the injury, a summary judgment is inappropriate.
 

Plaintiffs sought recovery against the defendants based upon the allegation that the air quality of the building where they worked had caused injury or death. The evidence revealed that the defendants were made aware of the problems with the air quality in the building and they did little to remedy the situation other than to clean and replace air-conditioning filters. In addition, they were less than candid with the employees about the extent of the problems or the risk they posed. The evidence might support a conclusion that the defendants negligently exposed the employees to increased risk; however, the defendants’ acts or omissions were not substantially certain to result in injury or death. Summary judgment in favor of defendants affirmed.

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