AN INTENDED ACT DOES NOT EQUATE TO
INTENDED HARM:
THE HEIGH BAR EMPLOYEES MUST MEET TO
UTILIZE THE INTENTIONAL ACT
EXCLUSION TO BRING A CLAIM DIRECTLY
AGAINST THEIR EMPLOYER
By:
Ellen G. Smith, Esq.
Boyle,
Gentile & 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
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 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.”); 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
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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