The Florida Workers’ Compensation Act provides what are supposed to be immediate benefits to an injured employee in return for the employer receiving immunity from civil suit. That immunity is not without exception. Fla. Stat. §440.11 provides two exceptions to that immunity: one relating to criminal conduct and the other to conduct of an employer which has a virtual certainty of causing injury or death. In Pendergrass v. R.D. Michaels, Inc., 936 So. 2d 684 (Fla. 4th DCA 2006), the appellate court held that by the plain terms of the statute the criminal act exception did not apply to a corporate defendant. Since virtually all employers in the State of Florida are incorporated, that effectively eliminated one portion of the act in question.
The second portion of the act granting an exception to workers’ compensation immunity is discussed in Cabrera v. T.J. Pavement Corp., 33 Fla. L. Weekly D2680 (Fla. 3rd DCA, Nov. 19, 2008). That appeal resulted when a summary judgment was entered against the estate of an employee who died as a result of the collapse of a trench which was eight feet deep, had vertical side walls, was dug in unstable layered soil and had a foot to a foot and a half of water accumulated in it. Experts for the plaintiff testified that under those circumstances there was approximately a 90% chance that the walls would collapse. The defendant, on the other hand, had evidence that 80% of the trenching had been done without incident, they had never had a prior incident of a trench collapse and Miami Dade inspectors were on site and never requested the trench boxes be used.
The issue before the Court was whether the evidence was sufficient to meet the test of the statute which required that the employer’s conduct was “whether the employer either knew or should have known that its conduct was substantially certain to result in injury or death.”
The Circuit Court relying upon Pendergrass, supra, entered a summary judgment but the Third District reversed agreeing with the Pendergrass Court that corporations cannot lose immunity based upon the criminal acts exception because the statute did not apply to corporate defendants but finding that the evidence was sufficient that the jury could conclude that the employer’s conduct was substantially certain to result in injury.
Key to the Third District’s finding was testimony provided by plaintiff’s experts arriving at the conclusion that there was a substantial certainty under the facts of this case that injury or death would result. This testimony is contrasted to the Pendergrass facts where the expert for the plaintiff merely testified that the acts of the defendant employer were “negligent.”
Subsequent to the injury and death suffered in this case, the Florida Legislature amended Fla. Stat. §440.11 to provide “for a virtual certainty test to be applied to the intentional tort exception to workers’ compensation immunity which must be established by clear and convincing evidence that ‘the employer engaged in conduct that the employer knew, based on prior similar incidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee.’” See Bakerman v. Bombay Co., 961 So. 2d 259 at 262 n. 3 (Fla. 2007).
The new statute has not yet been tested with respect to the objective standard that exists in determining whether the underlying facts of any particular case do or do not justify a jury determination of the employer’s conduct as having a virtual certainty to cause injury or death but based upon the requirements of the Third District in Cabrera, supra, regarding expert opinion, it is entirely conceivable that the amended statute has not significantly increased the burden on the plaintiff to establish a virtual certainly exception to workers’ compensation immunity.
Originally published in February 2009