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In Figueroa v. Delant Construction Co., 38 Fla. L. Weekly D1578a (Fla. 3d DCA July 24, 2013), the 3d DCA held that an employee's personal injury lawsuit was barred by workers' compensation immunity finding that the employer's conduct did not qualify for the intentional tort exception to the Workers' Compensation Act's exclusive remedy.

The 3d DCA reiterated that to meet the intentional tort exception to workers' compensation immunity under § 440.11(1)(b)(2), Fla. Stat., an employee is required to prove by clear and convincing evidence the following three elements:

1. the employer engaged in conduct that the employer knew, based on similar accidents or explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee;

2. the employee was not aware of the risk because the danger was not apparent; and

3. the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

The 3d DCA found no evidence of prior similar accidents or specific warnings establishing Figueroa's employer had engaged in conduct it knew was "virtually certain to result in injury or death" to Figueroa. Further, the evidence demonstrated that the danger had been apparent to Figueroa and that there had been no concealment or misrepresentation by the employer.

As a point of interest, in 2003, the Florida Legislature amended § 440.11, codifying the intentional tort exception to workers' compensation immunity and raising the standard needed to fall within the exception. Remarkably, in the nearly ten years since the October 1, 2003 effective date of this amendment, there have been no reported appellate decisions holding that an employer lost immunity as a result of its conduct. This decision by the 3d DCA continues this favorable trend for employers.



This summary was prepared by John Daly of our firm.


John Daly

 

 

38 Fla. L. Weekly D1578a

 

Torts -- Workers' compensation immunity -- Trial court properly entered summary judgment in favor of defendant, plaintiff's statutory employer, on ground of workers' compensation immunity -- Intentional tort exception to workers' compensation immunity was not applicable where there were no similar accidents or a specific warning explicitly identifying a known danger which would establish that defendant engaged in conduct it knew was virtually certain to result in injury or death, and where evidence demonstrated that the danger or risk was apparent to plaintiff, and that there was no concealment or misrepresentation by defendant

MANOLO FIGUEROA, Appellant, vs. DELANT CONSTRUCTION CO., and MASTER CONSTRUCTION OF SOUTH FLORIDA, INC., Appellees. 3rd District. Case No. 3D12-198. L.T. Case No. 10-21945. Opinion filed July 24, 2013. An Appeal from the Circuit Court for Miami-Dade County, Victoria S. Sigler, Judge. Counsel: Marlene S. Reiss, for appellant. Cole Scott & Kissane, P.A., and Anne Sullivan Magnelli, for appellee Master Construction of South Florida, Inc.

(Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.)

(ROTHENBERG, Judge.) Manolo Figueroa ("Figueroa") appeals the trial court's entry of final summary judgment in favor of his statutory employer, Master Construction of South Florida, Inc. ("Master Construction"), finding that Master Construction was covered by workers' compensation immunity for the personal injuries sustained by Figueroa. We affirm.

Figueroa's action was brought under the intentional tort exception to workers' compensation immunity as set forth in section 440.11(1)(b)2., Florida Statutes (2009). The intentional tort exception to workers' compensation immunity is applicable when the employee proves by clear and convincing evidence the following three elements:

1. the employer engaged in conduct that the employer knew, based on similar accidents

or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee; and

2. the employee was not aware of the risk because the danger was not apparent; and

3. the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

Boston v. Publix Super Mkts. Inc., 112 So. 3d 654, 657-58 (Fla. 4th DCA 2013) (citing Gorham v. Zachry Indus., Inc., 105 So. 3d 629, 632-33 (Fla. 4th DCA 2013)).

In the instant case, the record conclusively demonstrates that there were no prior similar accidents or a specific warning explicitly identifying a known danger, which would thereby establish that Master Construction engaged in conduct it knew was "virtually certain to result in injury or death" to Figueroa. Further, the unrefuted evidence demonstrates that the danger or risk was apparent to Figueroa, and that there was no concealment or misrepresentation by Master Construction. Therefore, as Figueroa cannot establish as a matter of law that the intentional tort exception to workers' compensation immunity is applicable, the trial court properly entered final summary judgment in favor of Master Construction. See Boston, 112 So. 3d at 657 (affirming entry of final summary judgment on workers' compensation immunity, noting that the intentional tort exception set forth in section 440.11(1)(b)2. "adopts a 'virtual certainty' standard . . . , requiring that the employer's conduct be virtually certain to result in injury or death in order to overcome immunity"); List Indus., Inc. v. Dalien, 107 So. 3d 470 (Fla. 4th DCA 2013) (noting that based on the "stringent" virtual certainty standard required to overcome an employer's statutory immunity under section 440.11(1)(b)2., the issue of whether the exception is applicable is "amendable to being decided on summary judgment"); see also Vallejos v. Lan Cargo S.A., 38 Fla. L. Weekly D1360 (Fla. 3d DCA June 19, 2013). Accordingly, we affirm.

Affirmed.



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