A primer on the intentional-tort exception to employers' workers' compensation immunity.

Author:Webster, Peter D.

Florida's Workers' Compensation Law (F.S. Ch. 440) is intended "to assure the quick and efficient delivery of ... benefits to an injured worker and to facilitate the worker's return to gainful reemployment at a reasonable cost to the employer." (1) It is based on a trade-off pursuant to which, in return for strict liability of employers for workplace injuries, employees give up the right to a common-law action against the employer for negligence. (2) For employee injuries or death "arising out of work performed in the course and the scope of employment," (3) an employer's obligation to pay benefits pursuant to the workers' compensation law is generally "exclusive and in place of all other liability, including vicarious liability." (4) The legislature's intent was to give employers immunity from suit "except in the most egregious circumstances." (5)

Historically, the only exception to workers' compensation immunity specified in the law was when the "employer fail[ed] to secure payment of compensation" (6) as required by the law, in which case the employee (or his or her legal representative if death resulted from the injury) could "elect to claim compensation under [the law] or to maintain an action at law or in admiralty for damages on account of [the] injury or death." (7) The law did not establish an exception for intentional torts committed by an employer. Although the law did not create an intentional-tort exception to employers' workers' compensation immunity, and workers' compensation "is entirely a creature of statute and must be governed by what the statutes provide, not by what deciding authorities feel the law should be," (8) in 2000, the Florida Supreme Court held that such an exception existed.

In Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000), a unanimous court said that, in Eller v. Shova, 630 So. 2d 537 (Fla. 1993), the court had "acknowledged that an employer enjoyed no immunity from an employee's action based upon an intentional tort," and that it was "reaffirming] that holding." (9) Although it would appear relatively clear that the statement from Eller on which the court relied was pure dicta, (10) that is beside the point for purposes of this article. What matters is that, after Turner, it was generally recognized that an intentional-tort exception to employers' workers' compensation immunity existed. (11)

In Turner, the court first "reaffirm[ed]" what it said was its holding in Eller--that an employer enjoys no immunity from an action asserting an "intentional tort" as that term had been defined in Fisher v. Shenandoah General Construction Company, 498 So. 2d 882 (Fla. 1986), and Lawton v. Alpine Engineered Products, Inc., 498 So. 2d 879 (Fla. 1986), i.e., a tort where the employer either "'exhibite[d] a deliberate intent to injure or engage[d] in conduct which is substantially certain to result in injury or death.'" (12) It then formulated the standard courts must use when applying the second alternative ground for establishing an intentional tort. In doing so, the court considered "whether, under th[e] second alternative, an employee must establish that the employer actually knew (subjective standard) or rather the employer should have known (objective standard) that the conduct complained of was 'substantially certain to result in injury or death.'" (13) The court adopted the "objective standard," (14) thus, requiring an employee to prove only that the employer should have known its conduct was substantially certain to result in injury or death. As the court explained, "the employer's actual intent is not controlling." (15) Rather, "[t]his standard imputes intent upon employers in circumstances where injury or death is objectively 'substantially certain' to occur." (16) The court, however, expressly recognized that a requirement that the employer "knew" of the risks of its conduct would establish a subjective standard. (17)

The legislature reacted to Turner in 2003, (18) enacting an amendment to F.S. [section]440.11(1), which, for the first time, created a statutory intentional-tort exception to workers' compensation immunity. (19) The amendment stated that an employer's actions would "be deemed to constitute an intentional tort and not an accident only when the employee prove[d], by clear and convincing evidence" either that:

  1. The employer deliberately intended to injure 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. (20)

Thus, although the legislature for the first time recognized a statutory intentional-tort exception to workers' compensation immunity, it is clear that the legislature also fundamentally changed the nature of that immunity from the court-created immunity in at least five important respects:

* It required that the employer's conduct be established by clear and convincing evidence, rather than merely the greater weight of the evidence;

* It rejected the court's objective (should have known) standard (21) in favor of the heightened subjective (actual knowledge) standard;

* It limited the sources from which the employer could obtain actual knowledge to "prior similar accidents" or "explicit warnings specifically identifying a known danger" of potential for injury to the employee;

* It rejected the court's substantial-certainty test in favor of the heightened virtual-certainty test rejected in Turner; (22) and

* It required the employee to establish that she "was not aware of the risk" because "the...

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