Cases

Injured worker settled his workers' compensation case with hisemployer and signed a broad release.  Subsequently, cause of action filed against employer by injured worker.  Summary judgment entered in favor of employer based on the legal conclusion that the claimant had elected his remedies afforded by the workers' compensation statutewhen the case was settled.

The cases which examine whether a plaintiff evidences a conscious intention to elect a remedy are divided into two groups:  1) Cases where compensability or the injured worker's status as an employee is an issue and 2) cases where the defendant's liability is claimed under an exception to the exclusive remedy statute and such was either waived or resolved in the workers' compensation case.  Neither of these circumstances applied in this case.

Court determined that the claimant had elected his remedy under the Workers' Compensation Act by filing a Petition for Benefits, receiving payments, and negotiating a settlement.  There was no question that the accident in this instance was compensable and benefits had been timely paid.  Had the claim initially been contested, there would not have been an election of remedies by settling the WC case.  Court determined that a provision in the release that the payment of a settlement should not be construed as an admission of any wrongdoing or liability on the part of the releasees did not affect the ruling that the employee had not elected his remedy by settling his workers' compensation case.

The plaintiff in this cause of action relied upon the Supreme Court opinion in Jones v. Martin Electronics, Inc., 932 So. 2d 1100 (Fla. 2006) which stated that where an employee is injured in the workplace during the course and scope of his employment, and receives workers' compensation benefits but does not pursue a compensation claim to a conclusion on the merits may still file an action against the employer if the employer's conduct is to the level of intentional conduct substantially certain to result in injury for which workers' compensation immunity is not available.  The court determined that the Jones opinion stated that the claimant could pursue a cause of action based upon an exception to the exclusivity of the workers' compensation statute because none of those claims were litigated in the workers' compensation case. 

In this case a claim was filed against the employer for "gross negligence" and "unrelated works".  However, these exceptions to the exclusive  remedy provisions of the workers' compensation statute do not apply in regards to a claim against the employer.  The gross negligence and unrelated works exceptions did not apply in this instance because the injured worker's co-employee was not being sued and any negligence on the part of the co-employee is not imputed to the employer.

A subcontractor on the same job as another subcontractor can be responsible to the employee another subcontractor (horizontal immunity) based on the gross negligence standard.  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 evidences a conscious disregard of the consequences.  There was no evidence presented by the plaintiff in this instance that the circumstances surrounding the incident constituted an imminent or clear and present danger.  The procedure that resulted in the claimant's injury had been performed on many occasions over many years without incident.  Modifying a piece of machinery in such a way as to increase its dangerousness does not always amount to gross negligence.  There was no evidence that the employer had knowledge of or was aware of an alleged imminent danger.  There was also no evidence of a conscious disregard of the plaintiff's safety by the employer.

Finally, the court found that the employer's conduct did not rise to the level of an intentional act to injure.  The definition of an intentional tort under the terms of Section 440.11,(1)(b), F.S., is intended to be the rarest of exceptions to the immunity granted to the employer.  Accordingly, this issue is amenable to being decided by summary judgment.  The possibility of an injury occurring as a result of an employer's conduct does not satisfy the "virtual certainty" standard defining intentional misconduct.  There was no evidence in this case of prior accidents on the machine where the claimant was working when injured and there was no proof by clear and convincing evidence that the injured worker was unaware of the risk because the danger was not apparent or that the employer deliberately concealed or misrepresented a danger to the plaintiff.