Filing a General Liability Claim For a Work Related Injury

When an employer has workers compensation coverage in effect, a tradeoff exists.  The tradeoff is between the rights of the employer, and the rights of employee.  The rights concern what remedies are available to the employee in the event of an on the job accident.  By “remedies,” we’re referring to monetary damages.  Monetary damages available in a personal injury or civil suit are entirely different from the benefits an employee would be entitled to pursuant to workers compensation laws.

In regard to work related injuries, the tradeoff protects employers because the injured employee agrees to give up his/her right to sue the employer if they receive benefits for the work-related injury [1]. The “benefits,” referred to are those provided by a worker’s compensation carrier or the employer directly.  An employer’s “exclusive liability,” to an employee who suffers an work related injury is the payment of WC benefits.  “Exclusive liability” means that payment of workers compensation benefits is the only form of liability an employer has to an employee.  By purchasing a WC insurance policy, an employer is generally immune from any other liability to an injured employee or his family.

However, an employer’s exclusive liability and immunity are not steadfast, unwavering barriers to which there are no exceptions.   There are exceptions that allow for an employee to sue their employer and recover damages entirely separate and apart from limited work comp benefits.  To discuss whether the circumstances surrounding your work accident would provide means for you to sue your employer in tort, contact our office for a free consultation.

The Florida Legislature requires employers in the construction industry with one or more employee to carry workers compensation coverage.  The same laws require that employers not engaged in the construction industry with 4 or more employees carry workers compensation coverage.  As you may imagine, employers resented incurring additional operating expenses in the form of workers compensation premiums.   To appease Florida employers, the legislature created the exclusive liability and immunity provisions.  Despite certain exceptions, even if your accident was caused by your employer’s negligence, your employer is immune from being sued regardless of such negligence.

Depending on the facts of your case, Florida’s Workers Compensation will not always operate as a complete bar to employee litigation. Florida’s Workers Compensation law is codified in chapter 440, Florida Statutes (2015) [2].   As explained above, under this no-fault system, the employee gives up a right to a common-law action for negligence in exchange for strict liability and the rapid recovery of benefits.  Meaning, when a work accident occurs, whether you are at fault or whether your employer is at fault is of no significance.   Workers compensation benefits are the only damages available for any accidental injuries or deaths arising out of work performed in the course and the scope of employment [3].

As mentioned above, there are certain circumstances in which Florida law allows employees to pursue a general liability claim against an employer.  Essentially, an employee can sue his employer for an intentional tort.  One example provides that an employer is not entitled to workers compensation protections if the employer causes the employee to fail to timely file a claim.  Late last year, the Third District Court of Appeal allowed an employee to file a general negligence claim against his employer for a work-related injury because the employer had concluded that the injury did not occur during the course and scope of employment.  Moreover, the work comp carrier took the position that the employee failed to timely report the injury to the carrier.  The result was the workers compensation carrier’s denial of the injured worker’s claim.  IF YOU RECEIVE A NOTICE OF DENIAL FROM A WORKERS COMPENSATION INSURANCE CARRIER IN REGARD TO YOUR WORK ACCIDENT, YOU MAY INDEED HAVE GROUNDS TO FILE A GENERAL LIABILITY CLAIM AGAINST YOUR EMPLOYER.   When the employee made a claim against the employer for general negligence, the employer asserted that it was entitled to immunity under the workers compensation laws.  The employer filed a motion for summary judgment seeking an order finding that worker’s compensation immunity applied.  The trial court denied the Motion. On appeal, the appellate court affirmed the trial court’s decision, stating that “it would be inequitable for the employer, through its insurance carrier, to take the position that there were no work-related injuries and hence no workers’ compensation coverage, and then later, when the employee brings a tort action against the employer, to assert as a defense at law that there was workers’ compensation coverage entitling the employer to immunity from suit. As the employer may not separate itself from its compensation carrier’s determination that the employee’s injuries did not occur during the course and scope of employment, the employer is estopped from taking the totally inconsistent position that the injuries did occur during the course and scope of employment and claim worker’s compensation immunity when sued in tort.Ocean Reef Club, Inc. v. Wilczewski, 99 So. 3d 1 (Fla. 3d DCA 2012), reh’g denied (Oct. 16, 2012) [4].

Workers compensation immunity does not always preclude an employee’s intentional tort claim.

Pursuant to section 440.011(1)(b) [5],Florida Statutes, allows for an employee to overcome the immunity provisions and sue their employer in tort:

  1. When an employer commits an intentional tort that causes the injury or death of the employee. Meaning, an employer deliberately intends to injury an employee. The employee must prove that the acts committed against them were intentional, pre-meditated, and grossly negligent, in order to receive financial restitution for their suffering based on tort law. An employer’s actions 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 injure the employee; or

2. The employer engaged in conduct that the employer knew was virtually certain to result in injury or death to the employee.  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.

If you have questions about aspect of your work accident, or your injuries sustained through any other type of accident please contact the Dolman Law Group for a free consultation.  Call us at (727) 853-6275 or visit us online at

Dolman Law Group
5435 Main Street
New Port Richey, FL 34652
(727) 853-6275