15 Aug 2014

Brief and Comments on Order From 11th Circuit Re: Florida Workers’ Advocates v. State of Florida

BRIEF AND COMMENTS ON ORDER FROM 11th CIRCUIT
RE:
FLORIDA WORKERS’ ADVOCATES (FWA)
WORKERS’ INJURY LAW & ADVOCACY GROUP (WILG)
ELSA PADGETT
As Intervenor/Petitioner
vs
STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL
August 13, 2014
Judge Jorge E. Cueto
Circuit Court Judge
Case No. 11-13661 CA 25

By Mary Ann Stiles, Esq., Partner, Quintairos, Prieto, Wood & Boyer, P.A., August 15, 2014

Without a defendant or a case of questionable controversy and no defense as to the constitutionality of whether or not s. 440.11, Fl. Stat. (2003) is invalid, a circuit court judge held that “As a matter of law, Chapter 440, effective October 1, 2003 is facially unconstitutional as long as it contains s. 440.11 as an exclusive replacement remedy.” See page 19 of the court order. [Read the order]

The procedural aspect of this case is very flawed and those reasons are correctly pointed out in the Attorney General’s Response to Court’s Order to Show Cause Dated July 24, 2014. [Read the response]

The entire argument in the Court’s order, while containing many facts that are not accurate – another reason a defense should have been presented – focuses entirely on whether or not when employees’ rights were eliminated in 1970 to opt out of the workers compensation system, the legislature has not replaced that loss with adequate remedies. The order fails to recognize the substantial increase in benefits and improvements to the Florida workers compensation system starting in 1974 using the work of Professor John Burton who testifies on behalf of the claimants’ organizations. Many of those changes are still in the statute today.

This case started out as a tort action with the Employer/Defendant raising the defense of exclusive remedy under s. 440.11, Fl. Stat. (2003). The FWA and the WILA moved to intervene and were granted the right to participate as parties and then moved to amend the complaint to add a new count for Declaratory Relief. The Employer/Defendant withdrew its affirmative defense of exclusive remedy and sought to be severed from the Declaratory Relief being sought by the claimants’ organizations. The result was that there were no defendants in the case and therefore no defense was presented to the court.

The Court served the Attorney General’s office with Notice and attempted to make it a party to the case. See [the order] for the discussion as to why this method was inappropriate and did not make the Attorney General a party on behalf of the State. Further, the order states that the “Attorney General of the State of Florida was timely and appropriately notified as required by law and has not sought to intervene on the part of the State of Florida to defend the constitutionality of s. 440.11, Fla. Stat. (2003)”.

That statement is flawed in that the Attorney General’s office did respond, while it did not seek to intervene as it was not the appropriate party; it did in fact argue that the statute was constitutional. At page 11 of the Response filed by the Attorney General:

If this court were to reach the merits of intervenors' arguments, despite the many reasons not to, any claim would still fail because Florida’ workers’ compensation system is constitutional. The intervenors’ motion misstates the standard of decision, misapplies the Kluger test, and ignores the fact that the courts have consistently found the workers’ compensation law constitutional after each change they cite”

Because the Office of Attorney General did not seek to intervene, the Circuit Court Judge stated in its order “The Attorney General of the State of Florida was timely and appropriately notified as required by law and has not sought to intervene on the part of the State of Florida to defend the constitutionality or validity of s. 440.11, Fla. Stat. (2003)." Obviously, the court ignored the arguments the Attorney General made as to the constitutionally of the statute because that office did not move to intervene as it would not be an appropriate party. The effort to join the Attorney General was a desperate attempt to have a defendant and those efforts failed. However, it does beg the question of why the Attorney General’s office did not reach out to the business and insurance community as to this issue and give those entities a heads up on this case so that some of those entities could have intervened in this case that could have a far reaching impact on the claimants’ in this state.

The Court initially denied a Motion for Summary judgment based on procedural grounds in that there “was no present controversy to support Declaratory Relief concluding that the Petition was asking for an advisory opinion.” “Thereafter Elsa Padgett, through counsel moved to intervene and the motion was granted”. The Court then held that "Intervenor Elsa Padgett presents a present controversy over the validity of s. 440.11, Fla. Stat. (2003).”

The order then goes on for pages as to why the act for those who want to bring a tort action no longer provides adequate remedies and why those individuals have the constitutional right to bypass the workers’ compensation law and go directly to the Circuit Court with its tort action.

At No. 8, page four of the order, the Court found:

As a matter of law, effective October 1, 2003, the Act, Ch. 44001, et seq., is no longer an adequate exclusive replacement remedy in place of common tort law as required by the 14th Amendment to the U.S. Constitution or by the Florida Constitution, (Deposition Professor Burton, Appendix F, pgs 60, 83)”

This entire case turns on the fact that there are claimants who are injured and desire to go directly to the Circuit Court to file its tort action and electing the remedy of a tort action over the receipt of workers compensation benefits. In this author’s opinion, many claimants would not meet the standard of being able to prevail in circuit court due to the lack of evidence that the employer actually caused the injury through negligence on the employer’s part. For those claimants who desire not to opt out of the system, the workers compensation law has not been declared unconstitutional. It is only s. 440.11, Fl. Stat. (2003) that has been found not to be an adequate replacement to the workers compensation system for those injured through no fault of their own. That is why the word that has been added “replacement” plays such an integral part of understanding the result the claimants’ organizations worked to accomplish. Many injured workers could not prevail in court and the compensation system, in my opinion, still operates for those injured workers.

The Judge even [went on to state in the] order that:

The Legislature must now determine what must be included in a Florida workers’ compensation law to meet the minimum threshold for it to be a constitutional exclusive remedy.

The Judge is saying if you do not want to be sued in tort, you need to make the system for those that are injured through no fault of their own, at the employer’s place of business, or as a result of employment a sufficient remedy under the workers compensation act. If not, you will be sued in tort in civil court.

The flaw in that directive is that while the Circuit Court may have found s.440.11 (Fla. Stat. (2003) unconstitutional, the Florida Supreme Court has yet to rule on the very issue of exclusive remedy in the pending case of Castellanoes. A rush to address this issue prior to that ruling would be premature.

A discussion here as to why the reasoning of the Court is seriously flawed would take a lot of time. A defense to this Declaratory Relief request would have raised all of those flaws. It appears that if a stay is not entered or an appeal is not taken (By whom as there is no defendant?), it is unclear the impact this opinion will have. Most likely those in the 11th Circuit will start to bring actions, as soon as the order and appeal time have passed, in tort in the civil courts. It remains to be seen if another judge in the same circuit would even agree with this order.

Further, the case before the Florida Supreme Court, Morales v. Zenith Insurance Company, 11th Circuit, April 15, 2013 is awaiting an order from the Florida Supreme Court. That case could well decide this case. The intervenors in the Morales may consider whether or not it should file this order of the 11th Circuit in that case as additional authority or if the claimants’ organizations will file same.

The following is brief summary issued by Tamela Perdue, General Counsel, Associated Industries of Florida as to the issues in Morales. The opinion has not yet been issued.

Morales v. Zenith Insurance Company, 11th Circuit, April 15, 2013

Facts: Employee worked as a landscaper and was crushed to death by a tree. In addition to receiving workers’ compensation benefits, his estate filed a wrongful death action alleging that the employer’s negligence—by using a flatbed trailer without sides, which could have prevented trees from falling—caused his death. Zenith, as the general liability and comp carrier, defended the employer on several grounds, notably arguing that the provision of workers’ compensation benefits (over $100,000 paid) was the only remedy for the employer’s estate. Employer’s CGL policy contained a workers’ compensation exclusion.

Issue: Are workers’ compensation benefits the exclusive remedy for an employee injury caused by an employer’s negligence?[fn] Does workers’ compensation exclusion in an employer liability policy, intended to protect employers from tort liability to their employees, bar coverage of an employee’s tort judgment obtained in a separate negligence suit?

Holding: The federal court referred the case to the Florida Supreme Court, as the holding is dependent on the “resolution of unsettled Florida law.” Three questions were certified:

a. Does the estate have standing to bring its breach of contract claim against the employer under the liability policy?

b. If so, does the exclusion of “obligation[s] imposed by workers’ compensation…law[s]” in the liability policy exclude coverage of the estate’s claim against the employer carrier in tort?

c. If the estate is not barred by the workers’ comp exclusion, does the release in the workers’ comp settlement agreement otherwise prohibit the estate’s collection of the tort judgment?

Oral argument held Thursday April 10, 2014. Currently awaiting decision.

It is interesting that the very thing that the parties accuse the business and insurance industry of doing, i.e. denial of due process and the right to be heard in court, it accomplished all of those violations of the business and insurance industry’s rights in the circuit court order.

I do want to point out that there are those who disagree with my analysis of this case and believe that the entire act has been declared to be unconstitutional. In my opinion, that ignores how s. 440.11, Fl. Stat. (2003) operates within the confines of the workers compensation statute.

__________________

Footnote: Current law provides exceptions only for intentional torts or where the employer’s conduct is “substantially certain” to injure the employee. Jones v. Martin Elecs., Inc., 932 So.2d 1100, 1104-05 (Fla. 2006); Eller v. Shova, 630 So.2d 537, 539 (Fla. 1993). Thus, “double recovery” of comp and liability benefits are only present in these two situations.