A common question that is asked at Drucker Law Offices by people that are injured at work is if they can sue someone other than their employer. So the question is: can I have a personal injury case, other than a workers’ compensation case) when I am injured at work?
To start, the liability of an employer to its employee is codified in 440.10 Florida statutes and is below. In 440.11, it refers to this compensation as “exclusive” and from this is derived what is known as workers’ comensation immunity. This immunity generally means that you cannot sue your employer in any way other than for workers’ compensation when you are injured at work and the employer provides the workers’ compensation benefits. There are certain exceptions to this rule which are beyond the scope of this article. Obviously, every case has to be based on the facts and if you have a case you should consult an attorney regarding your rights.
If you have been in an accident where you believe the other car or the place where you were injured is at fault, please call Drucker Law Offices for a free consultation at 561-483-9199 (Boca Raton Main office) or 954-755-2120 (Coral Springs satellite office) or 305-981-1561 (Miami satellite office).
One clear exception to the immunity would be suing someone OTHER THAN you employer. So for example, if you boss sends you to a store to buy something for work and you do this while you are “on the clock,” then you would generally qualify for workers’ compensation but you also might have a personal injury case against the store owner if they did something negligent. Another common example would be someone working and part of their job involes driving from one work site to another while the person is “on the clock.” To the extent that another driver, who is not working for the same employer, is at fault, generally there would be a case against that other driver.
Every case is different and must be judged on its merits. It is a good start to get a complementary consultation regarding an accident case in case this happens to you. The advice contained in this blog is intended to be of general matter and not as to a specific situation, so please call a licensed Florida attorney, like the lawyer at Drucker Law Offices, to determine if and how Florida law applies to your case.
So in these cases where someone is working but is injured as a result of someone else that does not work for his same employer, there may be a personal injury case against that person or the company where the accident happened. These are called “third party” workers’ compensation cases and often times people do not realize that in addition to the workers’ compensation case there is another case and for this reason you may want to consult an attorney about your rights when you are in an accident at work and you believe someone else is at fault. For a free consultation, please call Drucker Law Offices at 561-483-9199 to speak with the Boca Raton accident lawyer (with satellite offices)(Jupiter injury lawyer, North Lake injury attorney, West Palm Beach injury attorney, Loxahatchee accident lawyer, Wellington accident attorney, Boynton Beach injury lawyer, Delray Beach personal injury lawyer, Lake Worth injury lawyer, Palm Springs accident lawyer, Palm Beach injury attorney).
Every case is unique and should be judged based on the specific facts of the case. The advice in this blog is intended to be general and should not to be construed as specific advice for a case or your case. A minor difference in the facts of the case in a fact pattern such as above could change the result. Also, this blog is, as the web site suggests, based on Florida law and the laws of any other states could vary from Florida.
The statutes referenced in the blog are below:
440.39, Florida Statutes discusses the rights and obligations of a worker when the are making a third party claim against someone other than the employee when someone is injured at work. You must seek to collect, as part of your claim or lawsuit, the medical bills that are paid by the workers’ comensation insurance company and then repay that money to the insurance company. You also must seek to collect your full lost wages and then reimburse workers’ compensation pursuant to a formula
440.10 Liability for compensation.—
(1)(a) Every employer coming within the provisions of this chapter shall be liable for, and shall secure, the payment to his or her employees, or any physician, surgeon, or pharmacist providing services under the provisions of s. 440.13, of the compensation payable under ss. 440.13, 440.15, and 440.16. Any contractor or subcontractor who engages in any public or private construction in the state shall secure and maintain compensation for his or her employees under this chapter as provided in s. 440.38.
(b) 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 engaged 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.
(c) A contractor shall require a subcontractor to provide evidence of workers’ compensation insurance. A subcontractor who is a corporation and has an officer who elects to be exempt as permitted under this chapter shall provide a copy of his or her certificate of exemption to the contractor.
(d)1. If a contractor becomes liable for the payment of compensation to the employees of a subcontractor who has failed to secure such payment in violation of s. 440.38, the contractor or other third-party payor shall be entitled to recover from the subcontractor all benefits paid or payable plus interest unless the contractor and subcontractor have agreed in writing that the contractor will provide coverage.
2. If a contractor or third-party payor becomes liable for the payment of compensation to the corporate officer of a subcontractor who is engaged in the construction industry and has elected to be exempt from the provisions of this chapter, but whose election is invalid, the contractor or third-party payor may recover from the claimant or corporation all benefits paid or payable plus interest, unless the contractor and the subcontractor have agreed in writing that the contractor will provide coverage.
(e) 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 or in admiralty 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.
(f) If an employer fails to secure compensation as required by this chapter, the department shall assess against the employer a penalty not to exceed $5,000 for each employee of that employer who is classified by the employer as an independent contractor but who is found by the department to not meet the criteria for an independent contractor that are set forth in s. 440.02. The department shall adopt rules to administer the provisions of this paragraph.
(g) Subject to s. 440.38, any employer who has employees engaged in work in this state shall obtain a Florida policy or endorsement for such employees which utilizes Florida class codes, rates, rules, and manuals that are in compliance with and approved under the provisions of this chapter and the Florida Insurance Code. Failure to comply with this paragraph is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The department shall adopt rules for construction industry and nonconstruction-industry employers with regard to the activities that define what constitutes being “engaged in work” in this state, using the following standards:
1. For employees of nonconstruction-industry employers who have their headquarters outside of Florida and also operate in Florida and who are routinely crossing state lines, but usually return to their homes each night, the employee shall be assigned to the headquarters’ state. However, the construction industry employees performing new construction or alterations in Florida shall be assigned to Florida even if the employees return to their home state each night.
2. The payroll of executive supervisors who may visit a Florida location but who are not in direct charge of a Florida location shall be assigned to the state in which the headquarters is located.
3. For construction contractors who maintain a permanent staff of employees and superintendents, if any of these employees or superintendents are assigned to a job that is located in Florida, either for the duration of the job or any portion thereof, their payroll shall be assigned to Florida rather than the headquarters’ state.
4. Employees who are hired for a specific project in Florida shall be assigned to Florida.
(2) Compensation shall be payable irrespective of fault as a cause for the injury, except as provided in s. 440.09(3).
440.11 Exclusiveness of liability.—
(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except as follows:
(a) If an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by negligence of a fellow employee, that the employee assumed the risk of the employment, or that the injury was due to the comparative negligence of the employee.
(b) When an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that:
1. The employer deliberately intended to injure the employee; or
2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.
The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment. The same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed does not exceed 60 days’ imprisonment as set forth in s. 775.082. The immunity from liability provided in this subsection extends to county governments with respect to employees of county constitutional officers whose offices are funded by the board of county commissioners.
(2) The immunity from liability described in subsection (1) shall extend to an employer and to each employee of the employer which utilizes the services of the employees of a help supply services company, as set forth in Standard Industry Code Industry Number 7363, when such employees, whether management or staff, are acting in furtherance of the employer’s business. An employee so engaged by the employer shall be considered a borrowed employee of the employer, and, for the purposes of this section, shall be treated as any other employee of the employer. The employer shall be liable for and shall secure the payment of compensation to all such borrowed employees as required in s. 440.10, except when such payment has been secured by the help supply services company.
(3) An employer’s workers’ compensation carrier, service agent, or safety consultant shall not be liable as a third-party tortfeasor to employees of the employer or employees of its subcontractors for assisting the employer and its subcontractors, if any, in carrying out the employer’s rights and responsibilities under this chapter by furnishing any safety inspection, safety consultative service, or other safety service incidental to the workers’ compensation or employers’ liability coverage or to the workers’ compensation or employer’s liability servicing contract. Without limitation, a safety consultant may include an owner, as defined in chapter 713, or an owner’s related, affiliated, or subsidiary companies and the employees of each. The exclusion from liability under this subsection shall not apply in any case in which injury or death is proximately caused by the willful and unprovoked physical aggression, or by the negligent operation of a motor vehicle, by employees, officers, or directors of the employer’s workers’ compensation carrier, service agent, or safety consultant.
(4) Notwithstanding the provisions of s. 624.155, the liability of a carrier to an employee or to anyone entitled to bring suit in the name of the employee shall be as provided in this chapter, which shall be exclusive and in place of all other liability.