HOT TOPICS IN WORKERS ‘ COMPENSATION & LIABILITY

BETH J. LEAHY, ESQ.WALTON LANTAFF

Batten down the hatches

Issues that impact both workers’compensation and liability:

Who can be sued? Who is entitled to workers’ compensation immunity? Florida Statute 440.11The liability of an employer ( to secure payment

of compensation to its employees) 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, or anyone otherwise entitled to recover damages…except…

Employer for immunity?

Help supply company- Baker v. Airguide, 39 FLW D 2272 (Fla. 3rd DCA 2014)

The immunity applies to employer who contracted with an employment agency and the employment agency provided workers compensation benefits. They were a help supply company. Immunity barred civil suit.

The effect of a release:

A release in the workers’ compensation case can bar a civil case. Waiver. Morales v. Zenith

A release in a civil case can bar a workers’ compensation case.

Workers’ Compensation requirements for validity: difference between represented and unrepresented claimant. Unrepresented requires JCC approval that settlement is in the claimant’s best interest.

Employer or Carrier can waive immunity The denial of a workers’ compensation

claim, and the wording on a Response to Petition can create an estoppel\waiver and preclude the immunity defense.Picon V. Gallagher Basset, 548 Fed. Appx

561 (11th Cir. 2013)

Exceptions to Workers’ Compensation Immunity Florida Statute 440.11(b) intentional tort…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 effect of employer liability coverage Employer liability B coverage is “a gap

filler that provides protection to the employer in those situations where the employee has a right to bring a tort action despite the provisions of the workers’ compensation statute.”

Morales v. Zenith (Fla. 2014)

Attacks

Miami Circuit Court Order now on appeal to 3rd DCA- Padgett

“ I find that the Florida’s Workers’ Compensation Act as amended effective October 1, 2003,does not provide a reasonable alternative remedy to the tort remedy it supplanted. It therefore cannot be the exclusive remedy. 440.11 is constitutionally infirm and invalid.”

What about liability to independent contractors? One who hires an independent contractor is

generally not liable for injuries sustained by the contractor’s employees, but1. if owner actively participated in the construction

to the extent that he directly influenced manner in which work performed

2. owner owes business invitee duty to warn of latent and concealed perils known to owner or should have been known and not known to visitor

Phillips v. Republic, 40 FLW D 103 (5th DCA 2015)

Premises Liability Cases Florida Statute 768.0755 (2010)

If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business…had actual or constructive knowledge of the danger and should have taken action to remedy it. Constructive knowledge may be proved by circumstantial evidence showing that○ A. the dangerous condition existed for such a length

of time that, in the exercise of ordinary care, the business establishment should have known of the condition; orB. the condition occurred with regularity and was therefore

foreseeable

Cases

There is a conflict between the 3rd DCA and the 4th DCA whether the statute can be retroactively applied.

Where the statute has been applied, courts have granted Motions for Summary Judgment for the defendant. Walker v. Winn Dixie, 39 FLW D175 (Fla. 1st DCA 2014) –

accident happened 1 minute from inspection But not always

Ferris v. Club County, 138 So.3d 531 (Fla. 1st DCA 2014) plaintiff met burden where defendant did not enforce its standards, and failed to prohibit patrons from taking drinks on floor.

The undertaker doctrine/gratuitous undertaking

Cases where there is no special relationship to create duty, but the defendant undertook some action, and is alleged to have created a foreseeable zone of harm.Knight v. Merhige, 133 So.2d 1140 ( 4th DCA

2014) pubic policy here trumps the doctrine. Shooting by mentally disabled adult.

Dorsey v. Reider, 139 So.3d 860 (Fla. 2014)

Res Judicata and collateral estoppel do not apply to criminal case outcome

Professional Roofing v. Flemmings, 138 So.3d 524 (Fla. 3rd DCA 2014)

Stand your ground defense. Criminal outcome (dismissal) does not apply in civil case, as there are different opposing parties. Defendant has the burden to prove he is entitled to immunity under the stand your ground law, Florida Statute 776.

Automobile Liability

Unexpected IncapacityDriver not liable if accident results from

unexpected loss of consciousness or incapacity. Marcum v. Hayward, 136 So.3d 695 (Fla. 2nd DCA 2014)

Dangerous InstrumentalityTitle owner subject to liability, even if he does

not use or have access to car. Christiansen v. Bowen, 140 So.3rd 498 (Fla. 2014)

Theft

Uninsured Motorist

Anti- stacking provision in policy

Defamation

Attorney Fraud and authority to settle cases The Florida Philharmonic Orchestra v.

Bradford, 2014 WL3605501 (Fla. 4th DCA 2014)

Social media

Facebook posting breached confidentiality provision of settlement. Gulliver Schools, v. Snay, 137 So.3d 1045

(Fla. 3rd DCA 2014)

Discoverability and cell phone discoverability Root v. Balfou Beaty Construction LLC

132 so.3d 867 (Fla. 2nd DCA 2014) no- but

Tammy Lee Antico v. Williams, 39 FLW D2149 (Fla. 1st DCA 2014)-cell phone turned over

Attorney Disqualification

Conflict of InterestRambola v. Botchey, 2014 WL4402 (Fla. 1st

DCA 2014)

Arbitration

Waiver by participation in litigation Unconscionable clauses and behavior

Basulto v. Hialeah Automobile, 141 So.3d 1145 (Fla. 2014)

Statute of Limitations

Legal malpracticeArrowood Indemnity v. Conroy, Simberg,

134 So.3d 1079 (Fla. 4th DCA 2014)

First party insuranceLinares v. Universal Property, 141 So.3d 719

(Fla. 3rd DCA 2014)Reed v. State Farm, 133 So.3d 1114 ( Fla.

3rd DCA 2014)

Limitations continued Arbitration- 95.11 applies Amended Complaint relates back to date of filing.

Not service date.

Workers’ Compensation Reservation of fees and costs tolls statute of

limitationsLongley v. Miami Dade, 82 So.3d 1098 (Fla. 1st DCA

2012)Use of Motions requiring Fee Affidavits

○ F.T,M.I Operator v. Limith, 140 So.3d 1065 (Fla. 1st DCA 2014)

Workers’ Compensation one time change 5 calendar days- not business days

Hinzman v. Winter Haven, 109 So.3d 256 9 Fla. 1st DCA 2013)

Compliance?Advise claimant. Not need to set

appointment. Adequate. ○ HMSHOST v.Frederic,102 So.3d 668 ( Fla. 1st

DCA 2012)○ Advise doctor and not claimant. Not adequate

Bustamante v. Amber, 118 Do.3d 921 ( Fla. 1st DCA 2013)

EMAs

When? Conflict can not be based on stale conflictGuerra v. C.A. Lindeman, 39 FLW

D1510(Fla. 1st DCA 2014)

Good Faith Effort

JCC will not question if claimant’s counsel made good faith effort, if they pled it. Palm Beach County School Dist. V. Blake-

Watson, 91 So.3d 176 (Fla.1st DCA 2012)

And that all today folks…………