FLORIDA CASELAW UPDATE
1. INTENTIONAL INFILICTION OF EMOTIONAL DISTRESS
In Liberty Mutual Insurance Co. v. Steadman, 32 Fla. L. Weekly D 2052 (Fla.
2nd DCA Aug. 29, 2007), the issue was whether the carrier and adjuster were
immune from suit under Chapter 440 Fla. Stat. (the Workers’ Compensation
Act) for conduct arising out of the claims-handling process. The claimant filed
suit based entirely upon the carrier’s alleged nine-month delay in
authorizing lung transplant surgery previously ordered by the trial judge.
The appellate court concluded that if the allegations were sufficient to qualify
as stating a cause of action, then as a matter of law, such a claim could proceed
to trial. In this case, the appellate court found that the allegations did
allow the claimant to sue the carrier and the adjuster for intentional infliction
of emotional distress.
2. TORT IMMUNITY
In Vasquez & Hernandez v Sorrells Grove Care, Inc., 32 Fla. L. Weekly D 1968 (Fla. 2nd DCA Aug. 17, 2007), the existence of a settlement agreement resolving a workers compensation dispute did not conclusively establish the existence of an election for remedies which deprived the claimant of the ability to pursue a civil action against the employer, under the facts of the case.
However, the fact an employer/carrier asserts defenses to a worker’s compensation claim such as pre-existing condition, intoxication or other defense does not automatically give rise to a claimant’s ability to sue the employer. Tractor Supply Co. v. Kent, 32 Fla. L. Weekly D 2089 (Fla. 5th DCA Aug. 31, 2007).
An employer that supervises and controls a worker employed by a help service supply company or employee leasing company is entitled to tort immunity under Section 440.11 Fla. Stat. as well as under the “Borrowed Servant” rule. Saleeby v. Rocky Elson Construction Co., 2007 Fla. App. LEXIS 13874 (Fla. 4th DCA Sept. 5, 2007).
3. SETTLEMENTS – CONSTITUTIONALITY
In Lucas v. Englewood Community Hospital, 2007 Fla. App. LEXIS 13158 (Fla. 1st DCA Aug. 23, 2007), a claimant challenged the constitutionality of Section 440.20 (11)(c) Fla. Stat. (2005), which does not provide for payment of interest for late payment of settlement awards, when the claimant is represented by counsel. The appellate court held the statute did not violate the Equal Protection clause of the state or federal constitutions under the “rational basis” standard or test.
4. CLAIMANT MAY PROVE AN INJURY WITHOUT NEED FOR TREATMENT
The First District Court of Appeal held in Huff v. Loral American Beryllium
Co., 2007
Fla. App. LEXIS 13438 (Fla. 1st DCA Aug. 31, 2007) that an employee could
establish the existence of an “injury”, even though he did not
need any treatment for the condition. The claimant here established through
objective medical evidence that he had developed beryllium sensitivity from
prolonged exposure, and he could no longer work around the substance. Even
though he was not in pain, he did need medical monitoring and treatment,
so he did prove he sustained an “injury.”
5. SPOILATION
In Perez v. La Dove, Inc., 2007 Fla. App. LEXIS 14247 (Fla. 3rd DCA Sept.
12, 2007) a
workers’ compensation claimant filed a civil suit against the employer
for an alleged failure to preserve a forklift which fell off a loading dock
leaving him paralyzed. The employer was sued because the claimant allegedly
had to settle his lawsuit against the company that serviced the forklift
because the forklift was not preserved for his benefit. The appellate court
ruled that a spoilation suit cannot be filed against an employer, when no
request for preservation was made by the claimant/plaintiff until after the
forklift had been repaired.