It's darn near impossible to find a way to sue your employer or a co-employee when the negligence of the employer or co--employee causes serious injury to your client. It just got harder.
I could go on and on about the unfair level of Workers' Compensation benefits. "Compensation benefit" is the newest oxymoron! There were however some logical exceptions to the rule of employer immunity in exchange for fast, sure and reasonable compensation for injuries on the job. One exception is retaliatory discharge or threat of discharge or intimidation or coercion, resulting from a valid claim for compensation benefits, 440.205 F.S. (1979). The Supreme Court held in Smith v. Piezo Technology, 427 So. 2d 182 (Fla. 1983) that there could be no right without a remedy. The Court placed the cause of action created by 440.205 F.S. (1979) in the courts of general jurisdiction since there was no remedy in the compensation law for a violation. The third DCA recently said that 440.205 F.S. (1979) only created a cause of action for actual termination from employment as opposed to threats of job action, intimidation or coercion, Armando Montes de Oca v. Orkin 692 So. 2d 257 (Fla. 3 DCA 1997), review denied 699 So. 2d 1374 (Fla. 1997). It seems there is a remedy in Florida for retaliatory discharge but not threats of firing, intimidation or coercion!

Another exception to the immunity rule is (or was) the unrelated works provision in 440.11 (F.S.) The statute reads:

"…nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer's business but they are assigned primarily to unrelated works within private or public employment." 440.11 (1) F.S. (emphasis added).

So this automobile salesman is sent to the employer's plant n another city for training on the methods used to make the car he sells. While there at the plant a fork lift operator runs him down causing injury/ Does he have a meritorious cause of action under 440.11?

Let's analyze the language of the section. Both the salesman and the forklift operator are employees of the same employer, the XYC Car Co. Both are acting in furtherance of the employers business. Each is assigned primarily to unrelated works (in different cities no less). Therefore, the salesman can sue the fork lift operator successfully Not so fast.

The Third DCA in Dade County School Board v. Laing 24 FLW D445 (Fla. 3 DCA 1999), said "the fact that employees have different duties does not necessarily mean that they are involved in 'unrelated works.' The pertinent factor is whether the co-employees are involved in different projects. Thus, the focus is upon the nature of the project involved, as opposed to the specific work skills of individual employees."

In our example, the car salesman and the fork lift operator appear on the surface to be involved in unrelated works. Yet, if the "project" is the building and selling of an automobile for profit, they are actually involved in the same "project." The reasoning of the Third District could be applied to almost any situation with the same result. Every City of Miami Employee is engaged in the "project" of serving the public, hence none are in unrelated works. Every school teacher and every custodian, regardless of what school they work at are engaged in the "project" of educating students in the community. The "project" is therefore as big or as small as the Appellate Court says it is on a case by case basis. What a rule of law.

In the Laing supra case, the Third DCA said a school custodian and a teacher were not involved in unrelated works because they were each "…part of a team providing educational services…" Unfortunately, the opinion does not reveal that the parties stipulated that there were no issues of material fact. Whether employees are engaged in work on the same
project" would seem to be a material fact issue rather than a question of law. However, the Third DCA opinion as it stands, the unrelated works exception may have a died a judicial death.

In Holmes County School Board v. Duffell, 651 So. 2d 1176 (Fla. 1995) a school bus driver and a teacher were engaged in unrelated works when the bus driver injured the teacher during a fire drill. Not only was the bus driver responsible but the school board had to indemnify the driver and hence pay the judgment as a surrogate defendant pursuant to 768.28 (9)(a) F.S.I suppose that assisting student to escape a fire is not a team effort ala Laing.

But the First DCA in reversing the finding of unrelated works held that employees who have the same title, in this case, "nurse," are engaged in related work if their "primary assignment" is the same ie: patient care, Vause v. Bay Medical Center, 687 So. 2d 258 (Fla. 1 DCA 1996), review denied 695 So. 2d 703 (Fla. 1997).

In keeping with the theory espoused by the 3 DCA, if an employer chooses to set up different corporation, parent/subsidiary or the like, the employees of one entity may sue the employees of another entity for acts of negligence (I assume notwithstanding the fact they may be engaged in related works). That is the law even under circumstances where the parent corporation provides workers' compensation coverage for the employees of the subsidiary. The right to tort recovery remains but so does the right of subrogation against any recovery pursuant to 440.39 F.S., Wilkerson v. Gulf Stream Land and Development Co., 420 So. 2d 587 (Fla. 1982)

Our workplaces have become testing grounds for different systems of human resources programs. Leasing workers is in vogue as well as treating certain classes of workers as independent contractors. The unrelated works exception will probably continue to confound our trial and appellate courts for some time to come.

Mark L. Zientz
Law Offices of Mark L. Zientz, P.A.
9130 South Dadeland Boulevard
Suite 1619
Miami, Florida 33156
305.670.6275
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