Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

The "dual persona" doctrine, discussed only sparingly in Florida judicial decisions, is an exception to the "exclusive remedy" provision which bars most tort claims by an employee against his employer.  The doctrine permits an employee to pursue a tort claim against his employer where the corporate employer merges with a corporate third-party tortfeasor after the accident which caused the employee's injuries.  For example, in Percy v. Falcon Fabricators, Inc., 584 So.2d 17 (Fla. 3d DCA 1991), one of the few Florida decisions to address the doctrine, an employee was allowed to sue her employer when, after the manufacture of the defective product which injured the employee, the employer merged with the manufacturer of the product. 

 

In Griffin, Inc. v. Loomis, Fargo & Co., however, decided on 4/23/2008, the Second DCA refused to apply the doctrine to permit a claim for contribution by a third-party tortfeasor against the employer's successor corporation.  The facts of the case are a little complicated, but here goes:

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

In Perez v. La Dove, Inc., a case which I wrote about here and here, the Third DCA held that an injured worker must specifically request his employer to preserve evidence critical to his third-party liability claim before liability for spoliation of evidence will arise against the employer.

 

The Florida Supreme Court has now declined to review that case in this 2/1/2008 order.

• Email This
• Print
• Comments
• Trackbacks

Is a workers' compensation settlement agreement which purports to release the employer along with "its subsidiaries, affiliates, [and] parent companies" broad enough to release not only the employer from further liability under the Florida Workers' Compensation Law, but also the employer's sister corporation from the claimant's tort claim against the sister corporation?  Yes,said the First District Court of Appeal in Churchville, et ux v. GACS, Inc., a 2-1 decision issued on 1/23/2008.

 

Both judges in the majority agree that the term "affiliate" was unambiguous and that therefore the Churchvilles' tort claim against GACS, his employer's sister corporation, was barred by the release which he had executed in favor of his employer, Allied Systems, Ltd.  The two judges in the majority don't agree on the precise reasoning in that regard, however.  Judge Wolf uses a rule of statutory construction known as noscitur a sociis - meaning that "a word is known by the company it keeps."  Judge Wolf reasons that because the word "affiliate" appears in the release along with the terms "subsidiaries" and "parent companies," an "affiliate" is an entity which is neither a "subsidiary" nor a "parent company."  Judge Wolf also concludes that "[w]hile the Release does not specifically mention the pending tort claim, the language of the Release belies the assertion that the tort claim was not to be covered by the Release."

 

Judge Van Nortwick, on the other hand, concludes that because the term "affiliate" is unambiguous it is therefore unneccessary to resort to rules of statutory construction like noscitur a sociis.

 

Dissenting, Judge Browning reasons that the term "affiliate" was ambiguous and that it was therefore improper to grant summary judgment on the Churvilles' tort claim against GACS. 

• Email This
• Print
• Comments
• Trackbacks

One of the many changes wrought by the 2003 amendments to the Florida Workers' Compensation Law was a change regarding immunity from tort liability for subcontractors on construction jobs.  Specifically, the 2003 amendment to §440.10 now provides so-called "horizontal immunity" from tort liability for injuries to employees of other subcontractors 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.  Here's an article from the 12/4/2007 edition of the Florida Times-Union which illustrates the effect of this amendment in one case.

 

One of the attorneys quoted in the article questions the constitutionality of this amendment.  I'm not sure what the courts would say about this.  On the one hand, the Florida Supreme Court held that a 1971 amendment to §440.11 was an unconstitutional denial of "access to courts"  [see Art. I, §21, Fla. Const.] insofar as it purported to abolish a cause of action for indemnity against an employer by a third-party tortfeasor.  See Sunspan Engineering & Const. Co. v. Spring-Lock Scaffolding Co., 310 So.2d 4 (Fla. 1975).  On the other hand, that court later held that a 1978 amendment to §440.11 which raised the standard for bringing a liability claim against a co-worker of the same employer from simple negligence to "gross negligence" did not deny the injured worker access to courts.  See Iglesia v. Floran, 394 So.2d 994 (Fla. 1981).

• Email This
• Print
• Comments
• Trackbacks

The Third DCA has held that a workers' compensation carrier is entitled to interest on the benefits it has paid for the period of time after the claimant receives the settlement proceeds from his third-party liability claim until the amount of the carrier's lien is determined.  Nevertheless, no interest is payable for the period of time that the settlement proceeds remained in the claimant's attorney's trust account because interest accruing in that account is payable to the Florida Bar Foundation, Inc., not to the claimant.  Interest also should not be paid at the statutory rate set forth in §55.03, Fla. Stat., when the claimant himself did not receive interest at the statutory rate.  Riser v. Hartford Ins. Co.

• Email This
• Print
• Comments
• Trackbacks

The plaintiff in Perez v. La Dove, Inc., a decision from the Third DCA which I wrote about here, has filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court.  The basis alleged for Supreme Court jurisdiction is that the Third DCA's decision "expressly and directly" conflicts with the Fourth DCA's decision in Builder's Square v. Shaw, 755 So.2d 721 (Fla. 4th DCA 1999). 

 

The issue is whether an employee has a viable claim for "spoliation of evidence" against his employer for failure to preserve evidence relevant to his third-party liability claim if he never actually requested the employer to preserve such evidence.  In Shaw, the Fourth DCA held that the employer's duty to preserve relevant evidence arises even in the absence of an express request by the employee to do so under circumstances where the employer reasonably should know that such litigation is likely to occur.  You can read Perez's brief on jurisdiction here.

 

La Dove, Inc., has filed a brief disputing that the Supreme Court has jurisdiction.  According to their jurisdictional brief, the Fourth  DCA has actually receded from its Shaw decision in Royal & Sunalliance v. Lauderdale Marine Center, 877 So.2d 843 (Fla. 4th DCA 2004). Therefore, says the employer, there is no inter-district conflict. You can read their brief here.

• Email This
• Print
• Comments
• Trackbacks

Although the benefits provided by the Florida Workers' Compensation Act ordinarily are a Florida employee's "exclusive remedy" against his employer for workplace injuries, the employee retains his right to bring a tort action against any "third party tortfeasor" whose wrongful conduct caused those same injuries.  In order to prevent the employee from recovering twice for the same injuries in such cases, §440.39, Fla. Stat., provides that the employer (or its workers' compensation carrier) may assert a lien against the proceeds of any employee verdict against or settlement with the third party. Determining the amount of the carrier's lien in such cases - particularly in cases where the third-party action is settled before trial - often leads to confusion.

 

Luscomb v. Liberty Mutual Insurance Company, decided by the Third DCA on 10/17/ 2007, provides a good example.  Here's what happened:  Luscomb was seriously injured in an on-the-job accident while working for Raven Transport Company.  Liberty Mutual (Raven's workers' compensation insurance carrier) provided benefits to and on behalf of Luscomb on account of the accident.  In July 2003, Luscomb filed a tort claim against BJ's Wholesale Club and BJCR, Ltd., contending that their negligence was responsible for his injuries.  As it is required to do, Liberty Mutual filed a notice in that case of its workers' compensation lien. 

 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

"Spoliation of evidence" refers to the destruction of or failure to preserve evidence that is relevant to a lawsuit.  In Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005), the Florida Supreme Court recognized that there are two different kinds of spoliation claims - "first-party" claims where "the defendant who allegedly lost, misplaced or destroyed the evidence was also a tortfeasor in causing the plaintiff's injuries or damages," and "third-party" claims where "a person or entity, though not a party to the underlying action causing the plaintiff's injuries or damages, lost misplaced, or destroyed evidence critical to that action."  In Martino, the supreme court held that Florida does not recognize an independent cause of action for "first party" spoliation.  Rather, the plaintiff in such cases is entitled to a presumption that the defendant's conduct was negligent.

 

Third-party spoliation claims can arise in the workers' compensation context  because in Florida an injured worker retains his right to pursue an action against  a "third-party" tortfeasor who may have been responsible for his on-the-job accident. (In this instance, "third party" refers to parties other than the employer and the claimant's co-employees, who in most instances are immune from tort liability).  Under §440.39(7), Fla. Stat., the employer has a "duty to cooperate" with the employee in pursuing any such claim.  Thus, questions can arise whether the employer, by its actions or inactions, may have impeded the claimant in pursuing his third-party liability claim.  That's what happened in Perez v. La Dove, Inc., decided by the Third District Court of Appeal on 9/12/2007.

 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks