Florida Supreme Court Opinion Day

Saturday, August 25, 2007 | 0

By Mark Zientz

Each Thursday while the Supreme Court of Florida is in session, at about 11 a.m., the court posts opinions on the court website. June 1 was no exception.

Although most opinions concern death or disbarment, there was one opinion today of interest to students of workers' compensation and employer liability.

The actual policy of insurance that covers employees injured on the job in Florida is called the "workers' compensation and employer liability policy." Employer liability is restricted to cases where the employee is able to avoid the exclusive remedy that is called workers' compensation, and sue the employer in civil court for tort damages.

Under those limited circumstances the employer would have no coverage for the suit under a general liability policy (which would exclude from coverage, "employees"). So the "gap" is filled by what is commonly referred to as Part II (or Part B) of the WC policy.

One way to avoid the exclusive liability for an injury to an employee on the job is to prove (pre Oct. 1, 2003) that the injury was caused by some intentional act on the part of the employer which was substantially certain to cause injury or death to the employee.

In Turner v. PCR, 754 So. 2d683 (Fla.2000), the Supreme Court allowed such a suit versus an employer who had ignored obvious indications that the employers conduct would lead to an explosion. In Travelers v. PCR, the 11th Circuit certified a question to the Florida Supreme Court as to whether or not the Travelers policy of WC insurance issued to the PCR business "covered" a judgment based upon an intentional act. Travelers sought to avoid paying.

The Florida Supreme Court answered the question to the effect that the policy of insurance did cover the so called intentional act because the policy language was not clear, but that the policy could be rewritten to avoid such liability in the future. Of note policies written after the PCR case and after the amendment to the statute effective Oct. 1, 2003, do specifically exclude coverage for any intentional acts as they are described in Chapter 440.

One case that was filed in Miami-Dade County for a pre-Oct. 1, 2003 date of accident was Bakerman v. The Bombay Co., 891 So. 2d 555 (Fla. 3 DCA 2004). Bakerman alleged that his employer committed an intentional act which caused his injury. As with most cases that go to a jury wherein the plaintiff is an employee and the defendant is the employer, the jury found for Bakerman, holding that the employers conduct in providing Bakerman with an obviously defective ladder to use to retrieve merchandise from a high shelf, was enough to qualify as an intentional act substantially certain to cause injury or death. After a 1/3 reduction for comparative fault, the jury awarded Bakerman a net of $118,228.20 for his injury, a bad fracture of the left heel. Bakerman had previously collected workers' compensation indemnity and medical benefits.

Bombay appealed to the 3rd DCA.

Not surprisingly the 3rd DCA reversed the jury award and held for Bombay. An appeal to the Supreme Court alleging express and direct conflict with Turner resulted in today's decision. The Third DCA was reversed and in effect the jury verdict was reinstated.

What is most interesting is the original language used by Judge Schwartz (now Senior Judge) in the original opinion of the 3rd DCA which, even though withdrawn from the DCA opinion on rehearing was nevertheless quoted by the three justice dissent filed with the Supreme Court opinion. Judge Schwartz had commented, "It is simply beyond my comprehension that the employer's use of a worn ladder can amount to the extreme manslaughter-type misbehavior which is necessary to avoid the immunity conferred by the Workers' Compensation Act."

The "Schwartz" position was echoed by Justices Wells, Bell and Cantero in their dissent in Bakerman. Justices Quince, Lewis,C.J., Anstead and Pariente concurred in the majority opinion.

Therein lies the tale of the 4-3 court in Florida. Four understand that an employer's disregard for the health and safety of employees by those who are empowered to fire and discipline employees who don't do as they are told, is an enormous power which must be viewed as such. Employers who literally force employees to do unsafe acts in furtherance of the employer's profit motive must be held accountable for this type of intentional conduct. A rickety ladder, a frayed safety line, and the failure to maintain an aircraft, have one thing in common, they are intentional acts, done for profit, that ignore the obvious danger they pose to employees.

Three think that if the employer doesn't actually take a stick and poke the employee in the eye, there is no harm and no foul. Three seem to think that concealment is an element to be considered.

But what real choice does the roofer have, even if the unsafe condition under which he must work is not concealed? Will he walk off the job? Will he call OSHA (and wait weeks or moths while OSHA gets around to his complaint)? Or will he weigh the chances he can avoid the peril and avoid his own injury or death with the chances he can find a better paying, safer job somewhere else? My bet is he does what he is told.

Bakerman did what he was told. He knew the ladder was unsafe. And he lost one-third of his total recovery for his own comparative negligence. That is what he paid for knowing about the peril and ignoring it. A just result.

In the real world the employee, especially in a right-to-work state like Florida, has little say in the safety of the workplace. Even our Supreme Court justices have little say in the safety of their courthouse. Is there a dangerous mold growing in the wet basement? Has all the asbestos been removed from the building? Is a sick building danger being concealed? Can they refuse to work in an unsafe building? Will they?

Now that the Legislature has upped the level of culpability needed to file suit for an intentional act, adding the concealment factor, and now that the insurance industry has followed the courts instructions on how to avoid paying for these acts, this case really is an exercise in futility. On that point I agree with the dissent. But the fact that three couldn't see that workers' compensation should never be the sole remedy for gross negligence by an employer is disturbing.

A second case I have been watching in the Supreme Court is still undecided. Willis v. Gami Golden Glades, SC04-1929 still has no decision. This is a case that involves the "Impact Rule." Simply stated, in order to successfully sue for psychiatric injuries (emotional distress) does there need to be a physical injury to connect the psychiatric condition to? Willis was accosted and robbed at gunpoint on defendant's unsecured parking lot. She sued but was rebuffed by (drumroll...) the 3rd DCA.

Gov. Crist and the Florida Legislature in this most recent session passed a bill granting workers' compensation benefits to first responders who suffer psychiatric injury without underlying physical injury.

If WC can recognize that there can be such a real injury, why not tort?

It's time we in Florida recognize what the Federal government, the Veterans Administration, 30+ states and international law recognize; that there can be a real psychiatric injury without a physical injury as a basis for it. If not, a huge percentage of our soldiers returning from Iraq and Afghanistan would be SOL.

Mark Zientz is a Board Certified attorney in Workers' Compensation by the Florida Bar. His Web log can be viewed by visiting www.mzlaw.com.

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