Sometimes people who are hurt while working in Florida may have a personal injury claim even though they may be able to make a workers compensation claim.
In order to explain, I need to first talk about Florida work accident laws.
Pursuant to Chapter 440, Florida Statutes, employers in Florida are required to provide worker’s compensation coverage for their employees. Deen v. Quantum Res., Inc., 750 So.2d 616 (Fla. 1999).
The Worker’s Compensation Law was enacted to “assure the quick and efficient delivery of disability and medical benefits to an injured worker.” § 440.015, Fla. Stat. (2008).
The Florida Supreme Court has observed:
“As a tradeoff for requiring employers’ liability for payment of workers’ compensation benefits, the statute provides to such employers an immunity from tort lawsuits by employees” under certain circumstances. Deen, 750 So.2d at 618.
This system “provides employees limited medical and wage loss benefits, without regard to fault, for losses resulting from workplace injuries in exchange for the employee relinquishing his or her right to seek certain common law remedies from the employer for those injuries under certain circumstances.” Jones v. Martin Elecs., Inc., 932 So.2d 1100 (Fla.2006).
“It is the obligation to secure workers’ compensation that gives the employer immunity from suit as a third-party tortfeasor.” Cuero v. Ryland Grp. Inc., 849 So.2d 326, 328 (Fla. 2d DCA 2003) (citing Jones v. Fla. Power Corp., 72 So.2d 285, 287 (Fla. 1954)).
There are many situations where an injured employee only has a workers’ compensation claim. However, sometimes an employee can make a workers compensation claim and a personal injury claim.
The advantage of a personal injury claim is the ability to recover lost wages (that were not paid by workers compensation), pain, suffering and mental anguish damages.
Let’s look at a few Florida on the job accidents and see if the employee can sue for personal injury.
Worker is Injured by a Third Party
If a third party injures you while you are working, you may have a claim against the third party. This in addition to a workers’ compensation claim against your employer.
“Third party” usually, but not always, refers to someone who is not a coworker, employer or a contractor who hired you.
How Long Does a Worker Have to Sue a Third Party for Personal Injury?
See how long an employee has to sue a careless party for personal injury after an accident in Florida.
Employee Driver vs. Other Driver
I settled a personal injury case for $125,000 for a police officer who was working for Miami-Dade County Police Department. A driver of another car crashed into my client’s police car.
The personal injury case was against the other driver. Settlement is before deduction for attorney’s fees and expenses.
Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result.
The driver of the other car is a “third party.” My client’s fractured his wrist was fractured in the incident. He had surgery to repair it.
GEICO insured the other car. We also made a claim against GEICO. They paid $125,000 to settle the personal injury claim.
Workers’ compensation paid him benefits. My client owned a personal vehicle. He had Personal Injury Protection (PIP) through State Farm.
Contractor employee vs business
Publix hires an electrician to rewire some machines and extend some plugs in a cooler. The electrician slips and falls on water on the store floor. He is hurt.
The electrician can make a personal injury claim against Publix. The electrician can also make a workers’ compensation claim against Publix.
Does a supply company employee have a personal injury claim against a general contractor and construction manager on a construction project in Florida?
Yes. The case that says this is Pena v. Design-Build Interamerican, Inc., 132 So. 3d 1179 – Fla: Dist. Court of Appeals, 3rd Dist. 2014. In order to have a personal injury claim, the supply company employee will still have to show that general contractor or manager’s negligence caused his or her injury.
The supply company employee also has a workers compensation claim against his employer.
A company, DBI, is a general contractor and construction manager on a construction project at a processing plant. The general contractor hires a plumbing subcontractor, Royal Plumbing.
A plumbing supply company, One Stop Plumbing, supplies plumbing parts to the plumbing subcontractor. Assume that Alberto Zambrana worked as a plumbing supply deliveryman for One Stop Plumbing.
Zambrana, while in the course and scope of his employment, delivered a steel pipe to the construction site. Once at the site, he was told by Alberto Bogantes, a Royal Plumbing employee, to take the steel pipe to an upper level location.
Zambrana helped carry the pipe up to the second level. He held the pipe in place while it was installed. As he was walking toward the lift to return to the lower level, Zambrana stepped on a false ceiling and fell from the upper level some twenty feet to the ground below.
Zambrana was seriously injured, leaving him in a persistent vegetative state. His wife, Pena, was appointed plenary guardian of Zambrana. She filed a lawsuit on his behalf against the DBI Defendants and the Royal Plumbing Defendants for negligence and for loss of consortium on behalf of herself and Zambrana’s two children.
She also sued the Architect. Assume that before she sued, she received worker’s compensation benefits for her husband’s injuries from State Farm Insurance Company, the worker’s compensation insurer for One Stop Plumbing.
The general contractor, construction manager and plumbing subcontractor would not be entitled to workers compensation immunity. This is because the plumbing supply company is not a subcontractor.
Tip: Under Florida law, if Royal Plumbing was Zambrana’s employer, DBI Defendants and Royal Plumbing Defendant would be entitled to immunity, absent the application of any statutory exception. Fla. Dep’t of Transp, v. Juliano, 864 So.2d 11 (Fla. 3d DCA 2003).
Tip: In any Florida personal injury case, the goal is to get the case to a jury. Although most cases settle before trial, defendants generally take a closer look at the case as trial approaches. This often results in them increasing their offer to settle.
Section 440.10(1)(b) provides further:
In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engage on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.
Because Royal Plumbing was DBI’s subcontractor, if Zambrana was employed by Royal Plumbing (rather than One Stop Plumbing), DBI would be considered Zambrana’s statutory employer and would also be entitled to worker’s compensation immunity.
Thus, under Florida law, not only would Zambrana’s employer (and any statutory employer) be entitled to immunity, so too would his fellow employees and the employees of Zambrana’s statutory employer. Fla. Dep’t of Transp, v. Juliano, 864 So.2d 11 (Fla. 3d DCA 2003). If Royal Plumbing was Zambrana’s employer, all of the DBI Defendants and Royal Plumbing Defendants would be entitled to immunity, absent the application of any statutory exception.
If however, Zambrana was employed by One Stop Plumbing, a supply company, and not a subcontractor, none of the defendants would be entitled to immunity. I used a plumbing supply company in this example, but the law applies to all supply companies.
The exception to this would be Joel Gonzalez, President of One Stop Plumbing. As an officer of One Stop Gonzalez would be entitled to immunity under section 440.11(1) (absent any statutory exception to immunity), regardless of whether Zambrana was employed by One Stop Plumbing or Royal Plumbing.
Employee of Subcontractor Claim Against Contractor
Under Florida’s Workers’ Compensation law, a contractor generally is immune from a personal injury lawsuit brought an employee of a subcontractor. Florida Workers’ Compensation law provides this immunity to the contractor if he injures the subcontractor or an employee of the subcontractor.
Example of Contractor Immunity if Subcontractor Tries to Sue Contractor
A Walmart Store hires an electrician to rewire some machines and extend some plugs. The electrician needs a scissor lift and lift-operator to do the electrical work.
The electrician is a contractor under the law. The lift operator is considered a subcontractor.
The electrician has a duty to secure workers compensation coverage for the lift operator.
If the electrician has workers’ compensation insurance (or more likely has a Commercial General Liability insurance policy) that covers such circumstances that would provide workers’ compensation benefits), then the electrician is immune from any personal injury suit made by the subcontractor short of an intentional tort.
Intentionally torts are almost unprovable unless the tortfeasor acted with nearly criminal intent.
Employee Cannot Generally Sue Coworker for Personal Injury
Most of the time, an employee who is injured while working is only able to make a workers’ compensation claim, and cannot make a personal injury claim against a fellow employee.
Example – Usually Employee Cannot Sue Coworker for Personal Injury
Joe works as a cashier in Winn Dixie. Maria’s job is to stock the shelves at Winn Dixie. While they are both working, Maria pushes a shopping cart into Joe. Joe can only make a worker’s compensation claim.
Joe cannot make a personal injury claim against Maria because she is a coemployee and they are both working at the time of the incident.
Injured Worker Can’t Sue a Co-Employee (Truck Accident)
Let’s assume that John is a passenger in a truck that his coworker (Mike) is driving. (I’m using a truck in this example but the result is the same if John is driving a truck.) They are in Florida. John and Mike are making a delivery for their employer.
A drunk driver crashes into the truck in which John is a passenger. For John to get the most amount of money in his personal injury claim, he wants the other driver to be 100% at fault. Thus, in this case, John wants the drunk driver to be 100% at fault.
But why?
Because John cannot make a personal injury claim against his co-worker. This assumes that John’s employer has workers’ compensation insurance. If John’s employer has workers compensation insurance, it is immune from liability. Unfortunately, this also means that the co-worker who is driving the truck is also immune.
Therefore, even if Mike (the co-worker driver) was 100% at fault, John can’t sue him. Not even for one cent!
The good news?
John can still sue the other driver. However, the other driver is only responsible for his percentage of fault. Thus, John wants the other driver to be 100% at fault.
If the other driver is 100% at fault, John may get 100% of his damages. Examples of damages are pain, suffering, medical bills, lost wages, and more. In order for this to happen, the other driver needs to have bodily injury liability (BIL) insurance. John must hope that a company like USAA or Progressive insures the other driver.
Otherwise, how will John get paid for his personal injury claim against the other driver?
He won’t. Unless the other driver is driving for a big company like Walt Disney World, Universal Studios, Publix or Walmart. Those companies may not have BIL insurance on a vehicle. They can afford to self-insure. At least for the first $100,000 or million or so. If they don’t have BIL insurance, they have the money to pay huge claims.
Employee Can Sometimes Sue a Co-employee for Personal Injury.
Under Florida’s Workers’ Compensation Law, in rare instances, an employee can sue an employee of the same company for personal injury. He or she can sue for personal injury damages when:
each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within the public or private employment. Florida Statute 440.11(1)(b)(2).
The following is part of a Florida Supreme Court opinion which describes the unrelated works doctrine.
There is no bright-line rule that governs, however the unrelated works exception has both location and operational components and requires consideration of several factors, such as:
(1) whether the coemployees work at the same location, (2) whether the coemployees must cooperate as a team to accomplish a specific mission; (3) the size of the employer; (4) whether the coemployees have similar job duties, (5) whether the coemployees have the same supervisor; and (6) whether the coemployees work with the same equipment. Aravena v. Miami-Dade County, 928 So. 2d 1163 – Fla: Supreme Court 2006.
In a case such as this one, in which the coemployees do not work at the same location, it is more likely that the coemployees will be considered to be assigned primarily to unrelated works. However, in making this determination the courts should also consider whether the coemployees must cooperate as a team to further a specific mission of the employer, not whether they further the same general mission of the employer. In deciding whether coemployees must cooperate as a team to further a specific mission of the employer, it may be helpful to look to the last four factors enumerated above: the size of the employer and whether the coemployees work with the same equipment, have the same supervisor, or have similar duties.
…coemployees who work for different departments and at different locations, answer to different supervisors, and have primary assignments involving different duties and functions are engaged in unrelated works triggering the exception to workers’ compensation immunity in section 440.11(1). Accordingly, we conclude that Vega, who was working as a school crossing guard, and the traffic signal repair personnel charged with maintaining the traffic signals at the intersection where she was working were engaged in unrelated works and that her husband’s wrongful death claim is not barred by worker’s compensation immunity.
If you and an employee of a company are engaged in unrelated works claim, you may be entitled to money for pain and suffering, and up to 100% of your lost wages and other damages.
Cases Where Employee Couldn’t Sue Employer for Personal Injury
Alejandro Fernandez was employed by Arch Aluminum & Glass Company and Active Staffing of Hialeah, LLC. While cleaning a saw used to cut scrap metal at a plant owned and operated by Arch, Fernandez’s left hand was severed.
Fernandez sued both Arch and Active Staffing under the exception to worker’s compensation immunity located in section 440.11(1)(b), Florida Statues (2009), which allows for liability “When an employer commits an intentional tort that causes the injury or death of the employee.”
The appeals court ruled that the trial court properly dismissed the case. Basically, the worker did not have a personal injury case in addition to any workers compensation claim that he may have had.
The case is Fernandez v. Florida A & G Co, Inc., Fla: Dist. Court of Appeals, 3rd Dist. 2015. On October 7, 2015, Florida’s Third District Court of Appeal (DCA) issued its ruling.
Florida’s 3rd DCA handles appeals for Miami-Dade and Monroe County, Florida. I assume that this accident happened in one of these counties.
In Florida, most lawsuits take place in the county where the accident happened. I was not the attorney in this case.
The injured worker had a Miami lawyer. The employers’ lawyers were from Miami, West Palm Beach and Fort Myers/Naples.
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Editor’s Note: This post was originally published in June 2014 and has been completely revamped and updated.