Fourth DCA: Horizontal Immunity Provision Does Not Deny Access to Courts
I wrote here about Aikens v. Miller Electric, Case No. 1D07-6314, a case where the First DCA affirmed without opinion a Duval County circuit court's rejection of the plaintiff's challenge to the constitutionality of a 2003 amendment to §440.10, the so-called "horizontal immunity" provision. Under the more familiar "vertical immunity," a general contractor is immune from tort liability for injuries to employees of its subcontractors where the general or sub has secured workers' compensation coverage. But under the 2003 "horizontal immunity" amendment, employees of one subcontractor are now barred from suing other subcontractors in tort provided that: (1) the defendant subcontractor has secured workers' compensation insurance coverage for its own employees; and (2) the defendant subcontractor's own "gross negligence" was not the "major contributing cause" of the injuries.
Now the Fourth DCA has written an opinion in which it expressly rejects the plaintiff's claim that the 2003 amendment violates Art. I, §21, Fla. Const., the "access to courts" provision. See Amorin v. Gordon, decided on 12/3/2008. The court reasoned that the plaintiff's claim against the other subcontractor had not been completely abolished by the amendment because he could still bring suit in cases where the subcontractor was grossly negligent.
