Monday, September 22, 2014

Exclusive Remedy Case From the 5th

Friday brought an interesting appellate case on workers' compensation, from the Fifth District Court of Appeal in Daytona Beach. We are accustomed to our appellate workers' compensation cases coming from the First District in Tallahassee. There are circumstances in which other District Courts of Appeal (DCA) address workers' compensation though. 

For example, many eyes are on the Third District right now with the appeal of Judge Cueto's decision in Padgett (Florida Workers Advocates v. State of Florida) pending there. This blog has periodically brought you cases from other Districts around the state, illustrating that there are occasions for other DCAs to examine the provisions of Chapter 440. 

Last week, the Fifth District addressed exclusive remedy in R.L. Haines Construction v. Eva Santamaria, Case 5D13-1937. This is a sad circumstance involving a fatality in the workplace. We have witnessed great improvement in Florida workplace fatalities over the last decade, according to the Bureau of Labor Statistics. The high was 422 in 2004, to a low of 209 in 2012. According to the U.S. Census Bureau, Florida has about 6% of the United States Population (19 million divided by 316 million). In 2012 Florida had less than 5% of the workplace fatalities (209 divided by 4,383). Certainly, one death is too many and 209 is way to many, but the last decade's figures show improvement. 

The worker in R.L. Haines was Victor Lizarraga. He died when a 2000 pound steel column fell and struck him. A wrongful death case was prosecuted and a verdict returned for over two million dollars. The Fifth DCA reversed last Friday, concluding that the exclusive remedy in this situation is workers' compensation. 

The accident occurred when the decedent  and others were building a structure, to be supported by steel columns. These columns were secured to the foundation of the building with bolts set in epoxy. The epoxy was supposed to dry ("cure") for 72 hours before the columns were installed. The contractor had Mr. Lizzarraga and his coworkers begin setting the columns after theses specific bolts had been curing for about 44 hours. 

In letting the case proceed to trial, the Circuit Court concluded that the exclusive remedy immunity did not apply, because R.L. Haines' decisions regarding setting the columns after 44 hours made the "collapse of a column" "virtually certain to injure or kill." 

The Court noted that this exception had been previously referred to as "substantially certain to result in injury or death," but that the Legislature amended section 440.11 in 2003 to provide instead for a "virtually certain standard." The Court explained that this standard has been applied with the analysis somewhat dependent upon whether "prior accidents" had occurred, such that there is notice of the probability or potentiality of such an event. 

According to the Court, citing the Fourth DCA in List Industries Inc. v. Dalien, This "virtually certain" standard, "is an extremely different and manifestly more difficult standard to meet." In order to overcome the immunity, "a plaintiff must show that a given danger will result in accident every -  or almost every - time." 

The Fifth DCA in R.L. Haines concluded that this "virtual certainty" conclusion had been reached repeatedly by the Fourth DCA following List, and by the Third DCA in Vallejos v. Lan Cargo S.A.. It concluded on these precedents, that Eva Santamaria, Lizarraga's widow, would have to establish "that as a result of the shortened epoxy cure time, the column was virtually certain to fall and injure the decedent." It noted that there was no evidence of prior accidents, and that three other columns set with the same "shortened curing period" did not likewise fall. 

The Court clarified that it is the injury, not just the accident (the column collapse), that must be "virtually certain," noting that even if it was virtually certain the column would fall, there was no evidence "that the column would fall at a time, in a direction, and in a manner that was virtually certain to injure or kill." 

R.L. Haines is not a unanimous decision, Judge Cohen dissenting. Judge Cohen points out "that, to date, not one Florida case has upheld a finding that an injury or death was virtually certain to occur," citing Gorham v. Zachary Industrial Inc. Judge Cohen wrote that the appellate court's role "should not be to second guess the trial judge" who concluded in this case that there was sufficient evidence to make the "virtual certainty" a jury question. 

Judge Cohen noted evidence that some on the job site perceived an issue with one of the bolts on the column that ultimately collapsed. One of those bolts had changed position, indicating a lack of security, suggesting a vulnerability. There was testimony that if the bolts are not secure, "the column is going to fail." He concluded that this evidence supported a conclusion that R.L. Haines had received "explicit warnings specifically identifying a known danger."

The explanation in this case, by both the majority and dissent are enlightening on the current state of the law in Florida. The subject of exclusive remedy is in the news and of interest to employees and employers alike, making this case worthy reading.

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