By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC

Where workers’ compensation is in place, the workers’ compensation insurance is generally the exclusive remedy for the injured employee, unless the injury is the result of gross negligence, an intentional tort, or where the conduct in question is virtually certain to result in injury or death.

In Blanco v. Capform, Inc., 2013 WL 85197 (S.D.Fla. 2013), a general contractor’s employee was injured while working at a construction project in Miami, Florida. At the time of the injury, two employees of a subcontractor on the project were removing a taper tie with a blow torch. Once the taper tie was dislodged, the taper tie fell from the fourteenth floor of the building, ricocheted off of the thirteenth floor, and struck the contractor’s employee in the head while he was sweeping the ground on the Project site, leaving the employee with permanent brain damage. The subcontractor had taped off an area directly below the overhead work being done on the fourteenth floor to prevent people from walking in the purported ‘control access zone’ (zone) designated by the subcontractor. The outer area of the zone was about 24 feet from the building. The contractor’s employee was outside the zone and was struck about 45 feet from the building.

It was agreed by the parties that the subcontractor’s employees failed to tie off the taper tie prior to removing it, and if they had tied off the taper tie, it probably would not have fallen and hit the contractor’s employee. Moreover, even though it was against the subcontractor’s policy and the subcontractor had provided no hot work training to its employees, the subcontractor’s employees used torches to remove the taper tie. In addition, there was no safety net in place to catch the taper tie in the event it fell from the building.

Following the accident, the contractor’s employee’s wife, individually and as a guardian for the injured employee (together “Plaintiffs”) brought an action for gross negligence against the subcontractor alleging that the subcontractor’s gross negligence caused the accident. The subcontractor moved for a summary judgment against the Plaintiffs, arguing that the circumstances surrounding the accident arose out of the ‘simple’ negligence, which was insufficient to vitiate the subcontractor’s worker’s compensation immunity from tort liability and damages. Hence, the subcontractor argued that the Plaintiffs claims were barred by the exclusivity provisions of the Florida’s Workers’ Compensation Act because the subcontractor was not grossly negligent.

Pursuant to Florida’s Workers’ Compensation Act (“FWCA”), where workers compensation is in place, the workers compensation insurance is generally the exclusive remedy for the injured employee. Thus, the employer and other subcontractors under the contractor are immune from suit unless the employee was injured as a result of gross negligence or an intentional tort.

Fla. Stat. 440.10(1)(e) of the FWCA states in pertinent part:

“A subcontractor providing services in conjunction with a contractor on the same project or contract work is not liable for the payment of compensation to the employees of another subcontractor or the contractor on such contract work and is protected by the exclusiveness-of-liability provisions of s. 440.11 from any action at law . . . on account of injury to an employee of another subcontractor, or of the contractor, provided that:

1. The subcontractor has secured workers’ compensation insurance for its employees or the contractor has secured such insurance on behalf of the subcontractor and its employees in accordance with paragraph (b); and
2. The subcontractor’s own gross negligence was not the major contributing cause of the injury.

The Florida Supreme Court has defined “gross negligence” as an act or omission that a reasonable prudent person would know is likely to result in injury to another. To hold a party liable for gross negligence, the court must find that the defendant had knowledge of the existence of circumstances which constitute a ‘clear and present danger’ and yet still undertakes ‘a conscious, voluntary act or omission . . . which is likely to result in injury.

Because this issue was brought on the Subcontractor’s motion for summary judgment, the Subcontractor had the burden to show that there was no genuine dispute as to any material fact dealing with whether the Subcontractor’s conduct amounted to gross negligence. The court determined that the Subcontractor failed to show that there were no genuine issues of material fact. For example, the Subcontractor presented evidence that it was expected that if objects fell off the building they would fall into the control access zone. Conversely, the Plaintiffs presented evidence that it was foreseeable that falling objects may ricochet and fall outside of the zone. Further, the Plaintiffs presented evidence that prior to the accident, the Subcontractor removed safety devices; the Subcontractor had no spotter on the ground; the Subcontract had no hot work permit nor training to use a torch to cut the tapper tie; and the Subcontractor failed to tie off the cut end of the taper tie to prevent it from falling to the ground. Based on this evidence, the court concluded that many issues as to the material facts in this case will need to be determined by the jury, which precluded a determination as a matter of law that Subcontractor’s conduct did not rise to the level of gross negligence. Thus, the court held that the question of whether the Subcontractor was grossly negligent should be presented to the jury.

Although the Court did not rule on whether the Subcontractor’s conduct did not rise to the level of gross negligence, this case demonstrates that an exception to the workers’ compensation immunity exists where the injury is the result of gross negligence, a deliberate attempt to injure, or where the conduct is virtually certain to result in injury or death.

About the Author: Richard E. Guttentag is a partner with Stearns, Roberts & Guttentag, LLC, and is Board Certified in Construction Law by the Florida Bar. Mr. Guttentag exclusively in construction law including construction lien claims and defense, payment and performance bond claims and defense, bid protests, construction contract preparation and negotiation, and construction and design defect claims and defense. He can be reached for consultation at [email protected].

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