The "unrelated works" exception to workers' compensation immunity.

• Author: Dufoe, William S.

Section 440.11(1) of Florida Statutes provides that the liability of an employer under the workers' compensation law "shall be exclusive and in place of all other liability." The employer's immunity is a quid pro quo; the employee forgoes the right to sue in exchange for the employer's assumption of liability without fault. (1) Prior to 1978, although an employee entitled to workers' compensation benefits was barred from suing his or her employer in tort, the injured employee could nevertheless sue a fellow employee whose negligence had caused the injury. (2)

In 1978, [section] 440.11(1)was amended to extend the employer's immunity from tort liability to co-employees acting in furtherance of the employer's business. (3) This fellow employee immunity is qualified by two exceptions. It does not apply to a co-employee who acts with willful and wanton disregard, unprovoked physical aggression, or gross negligence. Nor does it apply when the employees "are assigned primarily to unrelated works within private or public employment." (4)

The statute does not define what the term "assigned primarily to unrelated works" means. (5) The unrelated works exception to workers' compensation immunity is unique to Florida. (6) Numerous appellate decisions have interpreted and applied the exception over the past 20 years. The courts have been fairly consistent in narrowly construing the exception so as not to undermine the statutory scheme of immunity as a quid pro quo for liability without fault. In the absence of a clear expression of legislative intent, however, the courts have employed different analytical approaches. Although the Supreme Court of Florida has recently addressed the unrelated works exception, a uniform analytical framework has yet to emerge. (7)

"Case-by-case" Approach

Most of the cases that have applied the unrelated works exception have followed what has been referred to as a "case-by-case" approach focusing on whether the employees are part of the same team or on the same project. The first case to consider the scope of the exception was Johnson v. Comet Steel Erection, Inc., 435 So. 2d 908 (Fla. 3d DCA 1983). In that case, an employee of a general contractor was injured as a result of the negligence of an employee of a subcontractor. Although their individual duties and skills were different (one was a laborer and the other was a welder), the court held that because they were "both employed on-site in the same construction project," their work was not unrelated, and the exception to immunity did not apply. Id. at 909.

The Second District cited Johnson in support of the same conclusion in Abraham v. Dzafic, 666 So. 2d 232,233 (Fla. 2d DCA 1995). In holding that the unrelated works exception did not apply, the court noted that "Abraham and Dzafic were employees of the same contractor working on the same construction site.... Although one was a painter and the other was a fluorescent lighting technician, and their work skills may have been 'unrelated,' their work was not." Id.

Vause v. Bay Medical Center, 687 So. 2d 258 (Fla. 1st DCA 1996), review denied, 695 So. 2d 703 (Fla. 1997), was a wrongful death action brought by the estate of an obstetrical nurse who died from decompression sickness after accompanying a patient inside a hyperbaric chamber at the hospital where she was employed. The defendants included the operator of the hyperbaric chamber, a director of the hyperbaric center, and the administrator of the hospital. The court held that the unrelated works exception did not apply. Although the decedent and the operator of the hyperbaric chamber had different duties and were assigned to different departments of the hospital, the court found they were both involved in the same project (patient care) and described their relationship as similar to the welder and the laborer in the Johnson case. Id. at 263. The court also held that the administrative personnel and the nurse were not engaged in unrelated works, stating that "[e]ach individual defendant was assigned to duties related to the purpose and function of decedent's job: The provision...