• Employer Liability Under the New "Virtual Certainty" Worker's Comp Immunity Standard
  • December 13, 2007
  • Law Firm: Fowler White Boggs Banker - Tallahassee Office
  • In a recently concluded case for a corporate client, the worker’s comp immunity doctrine played a central role. The plaintiff, an employee of the client company, lost his hand in a Probat coffee roaster because he didn’t “lock out-tag out” the machinery. Naturally, he received substantial worker’s comp benefits following the accident, as was his right. Eventually, he sued his employer directly under an intentional tort theory. As you might expect, the employee claimed seven-figure damages for the loss of his dominant hand.

    Under Florida law, employers are immune from direct actions by employees for injuries sustained on the job. The worker’s comp statute provides the employee with an “exclusive remedy.” However, there is an exception to an employer’s immunity if the employee can show that the employer committed an intentional tort. The standard for the exception is immensely difficult for plaintiffs to overcome.

    Under the statute, there is an “intentional tort” if the employer (1) deliberately intended to injure the employee, or (2) engaged in conduct that the employer knew was virtually certain to result in injury or death to the employee. Since employers don’t often deliberately and intentionally harm their employees, the vast majority of cases deal with the employer’s prior conduct, or prior incidents, which should have put the employer on actual notice of the danger.

    According to the statute, the “conduct” must be based on prior similar accidents or on explicit warnings that specifically identify a known danger. In addition to the specific actual notice, the employee must prove that he was unaware of the risk because (1) the danger is not apparent, and (2) the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

    There’s a kicker. Not only does the injured employee have to prove a history of prior similar accidents with a specific known danger, his own ignorance of the risk, and deliberate concealment and misrepresentation of the hazard by the employer…he must prove all these things by “clear and convincing evidence,” a much higher burden of proof than the usual “preponderance of the evidence” standard.

    In the case, we filed a motion for summary judgment based on worker’s comp immunity shortly after we got involved. (The prior defense counsel recommended the employer pay the plaintiff a lot of money to settle the case, which the employer was unwilling to do, and rightly so.) Before ruling on the motion, however, the court allowed the plaintiff’s counsel to conduct what I considered to be exceptionally broad discovery, all to no avail. There were no “smoking gun” prior accidents, or specific warnings of injury, or deliberate concealment of hazards. It was simply a terribly unfortunate accident. Ultimately, the plaintiff’s counsel realized his case had no merit. Shortly before the hearing on our motion for summary judgment, the plaintiff voluntarily dismissed the case with prejudice. Instead of paying a huge settlement, the employer got an outright dismissal.  

    The Worker’s Compensation Statute provides employers with nearly impenetrable armour against direct lawsuits brought by employees for on-the-job injuries. There are currently only two reported decisions under the new “virtually certain” standard, and both come down on the side of the employers. It seems clear that the overwhelming majority of these cases are ripe for summary judgment.