Suing Over a Work Injury in Florida

Generally no: an employer's workers' comp liability is exclusive and replaces other liability to the worker and family. Exceptions: (1) if the employer failed to secure workers' comp as required, the worker may choose comp or a lawsuit, and the employer cannot defend by blaming a co-worker's negligence, assumption of risk or the worker's comparative negligence; and (2) an intentional tort, proven by clear and convincing evidence that the employer deliberately intended to injure the worker, or knew from prior similar accidents or explicit warnings that its conduct was virtually certain to cause injury or death and deliberately concealed or misrepresented the danger. Co-worker immunity does not apply to a co-worker who acts with willful and wanton disregard, unprovoked physical aggression or gross negligence.

Yes. An injured worker can collect workers' comp and at the same time sue a negligent third party. The employer or its insurer is subrogated to the worker's rights to the extent of benefits paid or to be paid; it may file a notice of payment in the worker's lawsuit, which becomes a lien on the judgment or settlement, generally to recover what it paid after its share of costs and attorney fees, reduced proportionally if the worker shows the recovery was less than the full value of damages. The worker must serve notice of the lawsuit on the employer and the comp carrier, and if the worker does not sue the third party within 1 year after the claim accrues, the employer or carrier may sue after giving 30 days' notice.

If an employer fails to carry required workers' comp, the injured worker (or family in a death case) may choose either to claim workers' comp benefits or to sue the employer for damages, and in that lawsuit the employer cannot use the defenses of co-worker negligence, assumption of risk or the worker's comparative negligence. The Department of Financial Services must issue a stop-work order requiring the employer to cease business operations and assesses a penalty of 2 times the premium the employer should have paid for the uninsured periods in the preceding 12 months, or $1,000, whichever is greater. On construction jobs, a contractor becomes liable for comp to an uninsured subcontractor's employees and can recover those benefits from the subcontractor.