Cam Fentriss ◆ FRSA Legislative Counsel
Workers’ Comp Cases in the Supreme Court As we know, Florida is facing uncertain times for its workers’ compensation system with at least three very important cases pending before the Florida Supreme Court. As of December 4, 2014, one of the cases, Morales v. Zenith Insurance Company, has been resolved; but, two are still pending. One case, Westphal v. City of St. Petersburg, deals with the level of benefits for injured workers. Another case, Castellanos v. Next Door Company, deals with attorney fees for lawyers representing injured workers. The Castellanos case is a significant threat to the workers’ compensation system. A negative decision would be exceptionally costly because it would move us back to the obscenely large attorney fees that plagued us before the 2003 changes. For now, we can and should celebrate an important win in the world of workers’ comp with the good decision on December 4 in the third case, Morales v. Zenith Insurance Company. In this case, the most important question is whether an injured emIn this case Morales v. Zenith ployee who can and has collected benefits unInsurance Company, the most der workers’ comp can important question is whether also, or instead, collect an injured employee who can on a judgment for negand has collected benefits under ligence for the same workers’ comp can also, or in- injury. What makes the case such a high priorstead, collect on a judgment for ity is that it threatens negligence for the same injury. the well-established What makes the case such a and crucial “exclusivity high priority is that it threatens of remedy,” or the sole the well-established and cru- remedy, of the workers’ compensation law. The cial “exclusivity of remedy,” or workers’ compensation the sole remedy, of the workers’ law can be described as compensation law. follows: to give injured employees certainty of coverage in exchange for having the uncertainty and time delay of suing and trying to collect on a lawsuit for negligence. From the employer’s perspective, it is fair to say that a decision that allows an injured worker to pick between workers’ comp and liability coverage would be letting employees have it both ways and charging the employer for it. For the employer, it would make having a workers’ compensation law all risk and expense and no
6
ROOFING Florida
January 2015
benefit at all and there would be no reason to keep the workers’ compensation system. In the Morales case, the injured employee died as a result of the injury and the family was compensated through the workers’ comp system, but the family simultaneously filed and won, by default, a lawsuit for negligence for the same injury. The default negligence judgment was for $9.5 million, likely much more than the workers’ compensation settlement payment. Having already handled, settled, and paid the workers’ compensation claim, the insurance company refused to pay the $9.5 million, and that led to the lawsuit that made it all the way to the Florida Supreme Court. The family essentially argued that because this particular insurance policy is a workers’ compensation and employer liability policy, it provides coverage for both. Generally, that is true; but, not as a double-dipping benefit or pick-and-choose opportunity. The Florida Supreme Court agreed with that and found that the law and the insurance policy exclude liability coverage when workers’ comp coverage is imposed by the workers’ compensation law. That is exactly how we read the law and exactly what we wanted to hear from the Florida Supreme Court! The FRSA is participating actively in all the cases because this is a critically important part of protecting our stable workers’ compensation system. As was the case with doctors using a loophole in the law to sell drugs for outrageous prices out of their offices, at least one of these cases is just another example of service providers, or claimant lawyers, in the system making a grab for more than a reasonable share just because the law requires employers to provide the insurance coverage. Unless we want to get back to the days of paying 50 percent or more for workers’ comp insurance, we have to fight every single greedy grab out there. Anna Cam Fentriss is an attorney licensed in Florida since 1988 representing clients with legislative and state agency interests. Cam has represented FRSA since 1993, is an Honorary Member of FRSA, recipient of the FRSA President’s Award in 2002 and received the Campanella Award in 2010. She is a member of the Florida Building Commission Special Occupancy Technical Advisory Committee, President of Building A Safer Florida Inc. and past Construction Coalition Chair (1995-1997).