Third-Party Negligence/Liability

Workers in Florida typically aren’t isolated in a bubble. Most workers interact in some way with third parties, whether those are other contractors on a construction site or customers at a store or other drivers on the road.

At The Ansara Law Firm, our Fort Lauderdale work accident attorneys will help you make claims for damages from third parties in addition to filing for workers’ compensation benefits.

Although workers’ compensation is the exclusive remedy from an employer (meaning you usually can’t sue your company, boss or co-worker, even if he or she was negligent), this does not prohibit injury lawsuits against negligent third parties who contributed to or caused your injuries.

Liable third parties in work injury cases can include:

• Other motorists/ truck drivers.
• Trucking companies/ carriers.
• Product manufacturers of defective equipment, machines, tools or toxic products (product liability).
• General contractors or subcontractors (depending on the employment agreements).
• Maintenance companies.
• Mechanics.
• Those who carry out violent attacks.
• Owners of property where the injury occurred (premises liability).

In each of these cases, you need to be able to show that the non-employer’s wrongdoing or failure to abide their duty of care/ legal obligations directly resulted in your workplace injuries.

Situations where someone other than your employer was unreasonably careless or a product unreasonably dangerous or defective, these are grounds for bringing third-party claims with the assistance of a Fort Lauderdale lawyer.

Workers’ Compensation Liens on Third-Party Recovery

It should be noted that the workers’ compensation insurance carrier will have a line on any third-party recovery you receive. This is to prevent double recovery, as spelled out in F.S. 440.39(6). This provision says the employer or its insurance carrier has a statutory right to be repaid money paid the injured worker by the third party.

This doesn’t mean it’s not worth it to file a third-party lawsuit after a work injury. The effort often is worthwhile because third-party claims often provide more benefits. Workers’ compensation laws do not allow claimants to recover damages for pain and suffering, mental anguish, loss of life enjoyment or loss of consortium. These are all claims you can make in a third-party liability case.

Plus, workers’ compensation laws generally only allow one to recover a portion of lost wages (two-thirds). Meanwhile, a third-party liability claim will allow you to assert damages for both your full lost income PLUS lost compensation, which includes compensation for sick and vacation days, pay bonuses, other employment perks and loss of advancement opportunity.

So while your workers’ compensation insurance carrier may stake claim on the recovery you get for medical expenses and a portion of lost wages, there is often more than that recovered. Generally, the more serious your injuries and the greater your loss, the more compensation you will receive.

The so-called “Manfredo Formula,” developed with the U.S. Supreme Court’s 1990 ruling in Manfredo v. Employer’s Casualty Insurance Company, basically holds that:

The percentage value of the workers’ compensation lien = Third party settlement/ recovery amount, minus (-) attorney fees and costs, divided by (/) full case value.

Still, there could be other complicated factors, including:

• Multiple third-party recoveries;
• Prior settlement of all workers’ compensation medical and indemnity claims for a lump sum;
• Comparative negligence of the employee or employer resulting in a damage award that doesn’t cover the full cost of medical expenses.

In some cases, this lien can be waived by the employer or insurer. Usually, though this will be in exchange for settling the workers’ compensation case for less than if the lien had remained actionable.

For all these reasons, it’s best when choosing a work injury lawyer in the Fort Lauderdale area to find someone who understands the intersectional complications of Florida workers’ compensation law and personal injury law.

Can I Ever Sue My Employer or Co-Worker?

The answer is a cautious, “Yes.” But the circumstances under which you can bypass the exclusive remedy provision of Florida workers’ compensation law are limited.

The two main scenarios for overcoming employer immunity to pursue an injury lawsuit against an employer are:

• Employer engaged in grossly negligent conduct that employer knew was virtually certain to result in injury or death to employee and employee wasn’t aware of the risk because the danger wasn’t apparent and employer deliberately concealed or misrepresented the danger to prevent worker from making an informed judgement (this standard is virtually impossible to overcome);

• Employer failed to carry workers’ compensation coverage (this is much easier to prove).

The standard is somewhat less rigid for co-workers. The exception to fellow employee immunity is when a co-worker acts with willful and wanton disregard or unprovoked physical aggression or with gross negligence and such acts resulted in injury or death to plaintiff. You may also be able to sue a co-worker if he or she was engaged in “unrelated works.” This phrase from F.S. 440.11(1)(b)(2) has been weighed numerous times by Florida courts, and is generally stood to mean scenarios where co-workers don’t work in different locations, different departments, answer to different supervisors and have primary assignments with different duties and functions.

If you are unsure about your third-party liability legal options after a work injury, we can help.

Contact Fort Lauderdale Lawyer Richard Ansara at The Ansara Law Firm, by calling (954) 761-4011 for a free consultation.

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