A client sent a new federal case to me which reminded me to cover a Third District Court case from 2010.  A pretty big case that I missed.  My apologies.

Why is it so big?  Well, it is important for Employers to know that when you claim that an accident did not arise out of the course and scope of employment (magic words!), you throw away your W/C immunity in tort law.

In Rush v. Bellsouth Communications (2011 WL 691617), the Claimant alleged a workplace accident and injury due to toxic mold exposure and filed a Petition.  Bellsouth promptly denied the claim as  the accident “did not occur in the course and scope of employment, per s. 440.02(1).”

Just before final hearing, Claimant withdrew her PFB and filed a federal negligence lawsuit against Bellsouth for failure to notify her of the toxic mold and properly clean the building she worked in. 

Bellsouth moved for summary judgement asserting W/C immunity per s. 440.11.  However, the federal district court (Northern) denied summary judgement and based it on a Third DCA case (the aforementioned case that I forgot to discuss last year): Coastal Masonry v. Gutierrez.  That case says that an Employer cannot raise the “course and scope” defense and then also use W/C immunity against a Claimant in tort law.

The reasoning is the Employer is taking contradictory positions to avoid a lawsuit.  First, in W/C court, the Employer is denying a workplace accident even took place.  Then when Claimant files a negligence suit, the Employer is saying it has immunity because the accident occurred in the workplace. 

What is the Claimant to do?  She cannot seek relief in W/C court or in tort.  The courts are saying that an Employer cannot have it both ways.  While W/C is an exclusive remedy and a Claimant must go through W/C first, an Employer cannot talk out of both sides of its mouth and prevent a Claimant from having her day in court.

Now, a denial for reasons other than “course and scope” still preserves an Employer’s immunity.  There is Tractor Supply v. Kent.  In that case, the Employer denied the Petition on the grounds of Claimant having a pre-existing condition.  They were not denying an accident took place.  Therefore, Claimant had to proceed first with her W/C claim.  If the JCC ruled that the claim is outside the purview of W/C, then she could pursue a tort claim.

The important lesson for Employers to take away from all these cases is to think about your denials before you file them with DOAH.  If you have a sound defense that is within W/C law, go with that as we all know the alternative (circuit civil or federal court) is much more expensive; both in legal fees and potential damages. 

If you are positive that an accident did not occur, then be prepared for the possibility of a tort claim and that you cannot allege W/C immunity.  Also, discuss this with your Carrier and insurance broker.  There is a possibility you may have “Coverage B” insurance which covers denied W/C claims that are pursued under tort law.

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