| History:
Every employer who fails to secure the payment of compensation , as provided in s. 440.10, by failing to meet the requirements of s. 440.38 may not, in any suit brought against him or her by an employee subject to this chapter to recover damages for injury or death, defend such a suit on the grounds that the injury was caused by the negligence of a fellow servant, that the employee assumed the risk of his or her employment, or that the injury was due to the comparative negligence of the employee.
History.--s. 6, ch. 17481, 1935; CGL 1936 Supp. 5966(6); s. 5, ch. 70-148; s. 23, ch. 78-300; ss. 4, 124, ch. 79-40; s. 21, ch. 79-312; s. 43, ch. 89-289; s. 56, ch. 90-201; s. 52, ch. 91-1; s. 100, ch. 97-103; s. 4, ch. 2003-412.
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Relevant Case Law
Note: Employer has the sole obligation to secure payment of benefits under workers' comp, therefore, employee may file a civil suit if the employer did not secure payments for job related injuries.
Note: If the employer was completely free of negligence which caused or contributed to the employee's injury; or if the injury resulted solely from the employee's own negligence, there can be no recovery by the employee.
Note: Employee cannot receive unemployment compensation benefits if weekly pension benefits are greater than the unemployment benefits.
Note: 440.06 precludes an employer, who fails to secure the payment of compensation in any action brought against him by an employee to recover damages for injury, from defending such action on the grounds that the injury was caused by the negligence of a fellow servant, that the employee assumed the risk of employment, or that the injury was due to the comparative negligence of the employee.
Note: When employer accepts the Workmen's Compensation Act and provides for the payment of benefits thereunder, he becomes immune from suit by his employee for personal injury sustained by the employee in the scope of his employment but if the employer had rejected the act, he could not defend such a suit on the ground the injury to his employee was caused by the negligence of a fellow servant.
Note: Employer rejected the provisions of the Workmen's Compensation Act and by so doing it was precluded from pleading contributory negligence.
Note: Assumption of risk and comparative negligence are usually matters of defense, these defenses are barred if the employer failed to provide workers' compensation insurance.
Note: If the carrier says injury was not within the scope of employment, the an employer may not divorce itself from its compensation carrier's representation that an employee's injury did not occur in the course and scope of employment.
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