Third District Addresses Intentional Tort Exception to Florida Workers’ Compensation Immunity

It is fairly common knowledge that when someone is injured on the job, he is limited in the legal options he has for recovery against his employer. Indeed, Florida’s Workers’ Compensation Law generally prohibits an employee from bringing a negligence suit against his employer. However, the Workers’ Compensation Law is a general bar, not an absolute bar. In fact, Florida’s Third District Court of Appeal recently addressed the limits of one of those exceptions in its recent decision in Moradiellos v. Community Asphalt Corporation, Inc.

Moradiellos arose from the death of an asphalt surveyor who worked for Community Asphalt Corporation. Community Asphalt served as the general contractor of a project to widen the Florida Turnpike. The surveyor’s job was to determine where road markings and traffic lanes should be placed. He worked at nights, and on the night of the accident leading to his death, the survey crew was provided with a rack or portable lights, which were transported along the survey site by a pickup truck. At the time he was injured, the surveyor was working on the northbound lanes and was about 600-700 feet away from the portable lights. The surveyor was under a deactivated high mast light and was working with a flashlight and headlamp. He was hit by a dump truck that had been instructed to go to the worksite.

Instead of following directions to take the southbound lanes and approach the site from the south using the northbound lanes, the driver of the truck reversed backward down the southbound lanes, a violation of company policy. While reversing, the dump truck struck and killed the surveyor, who was facing in the other direction and speaking with a supervisor on a radio at the time of the collision. The surveyor’s widow brought this case as the representative of the surveyor’s estate and sued multiple parties, including Community Asphalt. Community Asphalt moved for summary judgment, arguing that it was entitled to immunity under Florida’s Workers’ Compensation Law. The trial court granted the motion, and the estate appealed the decision.

The key issue before the Third District was whether the accident was not actually an act of negligence, which is barred from being the basis of a suit under the Workers’ Compensation Law, but rather an intentional tort, which is exempted from the rule of employer immunity. The intentional tort exception is codified at section 440.11(1)(b) of the Florida Statutes. Three elements must be satisfied in order for the intentional tort exception to apply:

  1. The employer engaged in conduct that the employer knew . . . was virtually certain to result in injury or death to the employee;
  1. The employee was not aware of the risk because [it] was not apparent; and
  1. The employer deliberately concealed or misrepresented the danger . . . to prevent the employee from exercising informed judgment . . . .

Figueroa v. Delant Const. Co., 118 So. 3d 272, 272 (Fla. 3d DCA 2013). The Third District found that there was insufficient evidence in the record at summary judgment that would permit a reasonable jury to conclude that the intentional tort exception applied to the accident at issue. First, in order to show that the employer was virtually certain that injury or death would occur, the estate would need to point to evidence of prior similar accidents that gave notice of the likelihood of injury. However, there was no evidence of prior accidents or events from which a jury could determine the employer’s certitude. In addition, there was no evidence regarding whether the employer concealed or misrepresented the danger. Indeed, the driver failed to follow instructions and violated company policy. Accordingly, the Third District concluded that the trial court had not erred in granting summary judgment.

Although the exceptions to workers’ compensation immunity are limited and often narrow, there are indeed times when an employee can file suit for injuries that occur on the job. Although workers’ compensation does provide recovery for such injuries, it is often more limited than the recovery possible when issues of injuries are fully adjudicated. Given that the Workers’ Compensation Law doesn’t create an absolute bar, someone injured on the job should consult experienced counsel rather than assuming options beyond workers’ compensation benefits do not exist. The South Florida construction accident attorneys at Frankl Kominsky Injury Lawyers have represented many injured South Floridian workers and can help you assess whether you have a possible claim. Feel free to contact us if you are interested in a free case consultation.

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