July 3rd, 2017

AN INTENDED ACT DOES NOT EQUATE TO INTENDED HARM: THE HIGH BAR EMPLOYEES MUST MEET TO UTILIZE THE INTENTIONAL ACT EXCLUSION TO BRING A CLAIM DIRECTLY AGAINST THEIR EMPLOYER

By, Ellen G. Smith, Esq.

Just because an employer intends that an act be done does not mean that an employer intended harm to come from that which would allow employees to avoid workers’ compensation laws.  Florida Statute §440.11(1)(b) delineates when an employee can seek coverage under the intentional tort exception in workers’ compensation claims.  Florida Statute §440.11(1)(b) states:

(1)       The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except as follows:

(b)       When an employer commits an intentional tort that causes the injury or death of an employee.  For purposes of this paragraph, an employer’s action shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence that:

  1. The employer deliberately intended to injury the employee; or
  2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

In reaction to the Supreme Court’s ruling in Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000), the Florida legislature raised the bar in the enactment of Florida Statute §440.11(1)(b), from the previous standard of substantially certainty, to create an even narrower window where employees can avoid the immunity employer’s possess under the worker’s compensation laws.[1]  Not only did the legislature require that employees prove their case by the heightened standard of  clear and convincing evidence, but also created a standard where an employer must have deliberately intended the harm or where a harm is so obvious to occur because the harm has occurred before and will occur every time a that act is performed.  Since its enactment several District Courts have evaluated claims under the new heightened test, all of which have failed to meet the significantly higher standard created in Florida Statute §440.11(1)(b). See Gorham v. Zachry Industrial Inc., 105 So. 3d 629, 634 (Fla. 4th DCA 2013)(“[T]he mere knowledge and appreciation of a risk-something short of substantial certainty – is not intent.  The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong.”); See Boston v. Publix Super Market, Inc., 112 So. 3d 654, 657 (Fla 4th DCA 2013)(“the statute provides an exceptionally narrow exclusion from immunity, requiring intentional, deceitful conduct on the part of the employer.”); See List Industries, Inc. v. Dalien, 107 So. 3d 470, 471 (Fla. 4th DCA 2013)(“The change from ‘substantial certainty’ to ‘virtually certain’ is an extremely different and manifestly more difficult standard to meet.  It would mean that a plaintiff must show that a given danger will result in an accident every – or almost every – time.”); See Vallejos v. Lanm Cargo, S.A., 116 So. 3d 545 (Fla. 3d DCA 2013)(“the failure to train or warn of obvious dangers does not amount to concealing or misrepresenting the danger so as to prevent [the employee] from exercising informed judgment”).

The Florida Supreme Court in Travelers Indem. Co. v. PCR. Inc., 889 So. 2d 779 (2004) relied upon the standing rule that “tort law principles do not control judicial construction of insurance contracts….Thus, intentional act exclusions are limited to the express terms of the policies and do not exclude coverage for injuries more broadly deemed under tort law principles to be consequences flowing from the insured’s intentional acts.”  at. 793; quoting Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So. 2d 467, 470 (1993). Intentional act exclusions are not a bar to insurance coverage for liability arising from claims brought under the objectively, substantially certain to result in injury exception.  Travelers, 889 So. 2d at 781.  The key distinction is whether the employer intended to cause the harm, not whether the employer intended the actionSee id.; Swindal, 622 So. 2d at 472 (intentional acts exclusion did not bar coverage where insured approached another with a loaded handgun, got into an altercation with that individual during which the gun discharged and severely injury the individual; insured testified he did not intend to shoot and cause harm to the person) (emphasis added); See Cabezas v. Florida Farm Bureau Cas. Ins. Co., 830 So. 2d 156, 160 (Fla. 3d DCA 2002)(intentional acts exclusion did bar coverage where the insured admits he intentionally struck the person behind him who he believed was an assailant); Cloud v. Shelby Mut. Ins. Co. of Shelby OH, 248 So. 2d 217 (Fla. 3d DCA 1971)(ruling that tort law’s “reasonably foreseeable consequences” rule has no application to insurance policies, and intentional act exclusion did not bar coverage where the insured intentionally pushed another car out of its way causing injury to a passenger in the car being pushed); Phoenix Ins. Co. v. Helton; 298 So. 2d 177 (Fla. 1st DCA 1974)(exclusionary clause did not bar coverage because the insured did not intend to injure others even though insured intentionally drove his car into a crowd of people).

The Florida legislature’s enactment of Florida Statute 440.11(1)(b) combined with the Florida Supreme Court ruling in Travelers makes clear that the legislature intends for employees to use the channels created in the workers’ compensation law scheme which itself was put in place to provide quick recovery for employees who are injured on the job and emphasizes that tort principles have no place in workers’ compensation claims.

[1] The Supreme Court recognized that an exception to employer’s worker’s compensation immunity existed in Turner utilizing a “substantially certain” to cause injury or death standard.

April 20th, 2017

Fabre Defendants – Does A Defendant Want To Invite Invisible Men Into Their Courtroom?

By, Ellen G. Smith, Esq.

We have all heard of the elephant in the room, but what about the invisible man in the courtroom?  That invisible man is also known as the Fabre defendant.  See Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).  The Fabre defendant is a very important player at trial when dealing with multi-party and/or multi-defendant litigation.

The Fabre defendant usually arises when one or more parties settle in a case before trial, leaving other defendants remaining in the litigation and at trial. These remaining parties at trial then get to point their finger at the settled parties saying “they did it” either wholly or partially.  The burden is on the remaining defendant(s) to prove, by a preponderance of the evidence, the Fabre defendant(s) are at fault.  However, the decision of including or not including Fabre defendants can have a big impact on findings or economic and noneconomic damages.

The Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So. 2d 249, 253-53 (Fla. 1995) opinion, after the enactment of the three setoff statutes and section 768.81, clarifies that “the setoff statutes do not apply to noneconomic damages for which defendants are only severally liable pursuant to section 768.81(3), but held that the setoff statutes continue to apply to economic damages for which parties continue to be subject to joint and several liability. D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003), citing Wells, 659 So. 2d at 253.

Two cases since the Fabre case should cause remaining defendants to take pause and consider whether or not to include a settled out or nonparty defendant(s) on a verdict form.  In particular, the Supreme Court decision in Gouty v. Schnepel, 795 So. 2d 959 (Fla. 2001) provides an important distinction for a Fabre defendant who is found not liable (on the verdict form with a 0% liability verdict) versus a Fabre defendant not found liable (not included on the verdict form, so no liability verdict is determined). In Gouty, the plaintiff sued a gun owner and a gun manufacturer after being injured. Id. at 960. Prior to trial, the plaintiff settled with the gun manufacturer.  Id.  At trial, the jury found the gun owner 100% at fault, and attributed 0% of the fault to the gun manufacturer. Id. After trial, the gun owner sought to reduce the jury verdict of economic damages by the amount of settlement paid by the gun manufacturer. Id. The Court explained “that the setoff provisions, which were enacted before section 768.81, presuppose the existence of multiple defendants jointly liable for the same damages.” Id. at 963, quoting Wells, 659 So. 2d at 252-53 (Fla. 1995).  Thus, the Court held that a defendant who is found solely liable does not receive a setoff because the parties are not joint tortfeasors. Gouty, 795 So. 2d at 965.  The setoff statutes only apply where multiple defendants are liable for the same injury, thus if one defendant is found not liable, the two defendants are not liable for the same injury. See id. Here, the catch is if the gun owner had not listed the gun manufacturer as a Fabre defendant then the gun owner would have received a setoff of the settlement amount for economic damages to prevent the plaintiff from receiving a double recovery.

Furthermore, this point is emphasized in the D’Angelo holding.  The plaintiffs, the Fitzmaurices, sued the doctor who allegedly left a laparotomy pad inside the plaintiff, Mr. Fitzmaurice, during an appendectomy. D’Angelo, 863 So. 2d at 312.  Prior to trial, the plaintiffs settled with the medical center where the surgery took place. Id. At trial, only the doctor was listed on the verdict form, and the jury did not make a determination as to the medical center’s liability or apportion fault.  Id. at 313. The jury awarded damages to the plaintiffs. Id.  The doctor then sought a setoff of the economic damages for the settlement reached between the plaintiffs and the hospital. Id. The trial court granted the doctors motion and reduced the economic damages but refused to reduce the noneconomic damages. Id. On appeal, the court explained that “[u]nlike noneconomic damages, or which section 768.81 eliminated joint and several liability, the setoff statues continue to apply to economic damages for which parties continue to be subject to joint and several liability.” Id. at 316.

Thus the important take home from Wells, Gouty and D’Angelo is that if a defendant wants a reduction for non-economic damages then that defendant must list the settled out defendant(s) as Fabre defendants on the verdict form and prove their fault.  However, the economic damages, based on the setoff statues, does allow a set-off of economic damages even if a nonparty defendant is not found liable.

Based on these rulings, a defendant who faces trial leaving behind settled out parties need to carefully consider whether or not to include these settled out defendants and have them be the invisible men in the court room.  On one hand, the noneconomic damages award might be reduced if the Fabre defendants are apportioned fault.  On the other hand, if the jury finds the Fabre defendants not liable, then the defendant not only receives 100% of the noneconomic damages but also will not receive a set-off of the economic damages.

January 22nd, 2016

AN INTENDED ACT DOES NOT EQUATE TO INTENDED HARM: 

THE HIGH BAR EMPLOYEES MUST MEET TO UTILIZE THE INTENTIONAL ACT

 

EXCLUSION TO BRING A CLAIM DIRECTLY AGAINST THEIR EMPLOYER

 

 

 

By: Ellen G. Smith, Esq.

 

Boyle & Leonard, P.A.

 

Just because an employer intends that an act be done does not mean that an employer intended harm to come from that which would allow employees to avoid workers’ compensation laws.  Florida Statute §440.11(1)(b) delineates when an employee can seek coverage under the intentional tort exception in workers’ compensation claims.  Florida Statute §440.11(1)(b) states:

 

(1)        The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except as follows:

 

(b)        When an employer commits an intentional tort that causes the injury or death of an employee.  For purposes of this paragraph, an employer’s action shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence that:

 

  1. The employer deliberately intended to injury the employee; or

 

  1. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

 

 

In reaction to the Supreme Court’s ruling in Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000), the Florida legislature raised the bar in the enactment of Florida Statute §440.11(1)(b), from the previous standard of substantial certainty, to create an even narrower window where employees can avoid the immunity employer’s possess under the worker’s compensation laws.[1]  Not only did the legislature require that employees prove their case by the heightened standard of  clear and convincing evidence, but also created a standard where an employer must have deliberately intended the harm or where a harm is so obvious to occur because the harm has occurred before and will occur every time a that act is performed.  Since its enactment several District Courts have evaluated claims under the new heightened test, all of which have failed to meet the significantly higher standard created in Florida Statute §440.11(1)(b). See Gorham v. Zachry Industrial Inc., 105 So. 3d 629, 634 (Fla. 4th DCA 2013)(“[T]he mere knowledge and appreciation of a risk-something short of substantial certainty – is not intent.  The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong.”); SeeBoston v. Publix Super Market, Inc., 112 So. 3d 654, 657 (Fla 4th DCA 2013)(“the statute provides an exceptionally narrow exclusion from immunity, requiring intentional, deceitful conduct on the part of the employer.”); See List Industries, Inc. v. Dalien, 107 So. 3d 470, 471 (Fla. 4th DCA 2013)(“The change from ‘substantial certainty’ to ‘virtually certain’ is an extremely different and manifestly more difficult standard to meet.  It would mean that a plaintiff must show that a given danger will result in an accident every – or almost every – time.”); See Vallejos v. Lanm Cargo, S.A., 116 So. 3d 545 (Fla. 3d DCA 2013)(“the failure to train or warn of obvious dangers does not amount to concealing or misrepresenting the danger so as to prevent [the employee] from exercising informed judgment”).

 

The Florida Supreme Court in Travelers Indem. Co. v. PCR. Inc., 889 So. 2d 779 (2004) relied upon the standing rule that “tort law principles do not control judicial construction of insurance contracts….Thus, intentional act exclusions are limited to the express terms of the policies and do not exclude coverage for injuries more broadly deemed under tort law principles to be consequences flowing from the insured’s intentional acts.”  at. 793; quotingPrudential Prop. & Cas. Ins. Co. v. Swindal, 622 So. 2d 467, 470 (1993). Intentional act exclusions are not a bar to insurance coverage for liability arising from claims brought under the objectively, substantially certain to result in injury exception.  Travelers, 889 So. 2d at 781.  The key distinction is whether the employer intended to cause the harm, not whether the employer intended the action.  See id.Swindal, 622 So. 2d at 472 (intentional acts exclusion did not bar coverage where insured approached another with a loaded handgun, got into an altercation with that individual during which the gun discharged and severely injuring the individual; insured testified he did not intend to shoot and cause harm to the person) (emphasis added); See Cabezas v. Florida Farm Bureau Cas. Ins. Co., 830 So. 2d 156, 160 (Fla. 3d DCA 2002)(intentional acts exclusion did bar coverage where the insured admits he intentionally struck the person behind him who he believed was an assailant); Cloud v. Shelby Mut. Ins. Co. of Shelby OH, 248 So. 2d 217 (Fla. 3d DCA 1971)(ruling that tort law’s “reasonably foreseeable consequences” rule has no application to insurance policies, and intentional act exclusion did not bar coverage where the insured intentionally pushed another car out of its way causing injury to a passenger in the car being pushed); Phoenix Ins. Co. v. Helton; 298 So. 2d 177 (Fla. 1st DCA 1974)(exclusionary clause did not bar coverage because the insured did not intend to injure others even though insured intentionally drove his car into a crowd of people).

The Florida legislature’s enactment of Florida Statute 440.11(1)(b) combined with the Florida Supreme Court ruling in Travelers makes clear that the legislature intends for employees to use the channels created in the workers’ compensation law scheme which itself was put in place to provide quick recovery for employees who are injured on the job and emphasizes that tort principles have no place in workers’ compensation claims 

 

[1] The Supreme Court recognized that an exception to employer’s worker’s compensation immunity existed in Turner utilizing a “substantially certain” to cause injury or death standard.

 

 

 

 

 

 

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