WORKERS COMPENSATION IMMUNITY AND THE INTENTIONAL TORT EXCEPTION

 

shutterstock_251422126In prior articles, I discussed the benefit of workers compensation immunity for contractors.  Arguing around workers compensation immunity under the “intentional tort exception” is really hard – borderline impossible, in my opinion.  Nevertheless, injured workers still make an attempt to sue a contractor under the intentional tort exception to workers compensation immunity.  Most fail based on the seemingly impossible standard the injured worker must prove to establish the intentional tort exception.  A less onerous standard (although certainly onerous), as a recent case suggests, appears to be an injured worker suing a co-employee for the injury.

 

Florida Statute s. 440.11 discusses the intentional tort exception to workers compensation immunity.   Workers compensation shall be the exclusive remedy to an injured worker UNLESS the injured worker can establish a claim against the contractor or fellow-employee under the intentional tort exception as statutorily set forth below:

 

440.11 Exclusiveness of liability. – 

(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability . . . except as follows:

. . . .

(b) When an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that:

1.  The employer deliberately intended to injure the employee; or

2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

 

The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when the employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this statute. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or . . . with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death . . . .

 

In Ramsey v. Dewitt Excavating, Inc., 43 Fla. L. Weekly D1366a (Fla. 5th DCA 2018), an employee was cleaning a cement-mixing pugmill with a fellow employee.  An accident happened while the employee was inside the mixing box causing his death.  While he was inside, his fellow-employee turned on the mixing box causing his death.  The employee’s estate sued both the employer and the fellow-employee for the wrongful death and argued under the intentional tort exception to get around workers compensation immunity.  

 

The trial court granted summary judgment on the issue of workers compensation immunity finding that the immunity barred the estate’s claims against the employer and the fellow-employee.

 

Intentional Tort Exception as to Employer

 

The appellate court affirmed the summary judgment as to the employer because the employee could NOT prove the virtually impossible burden in establishing the applicability of the intentional tort exception.

 

Three elements must be proved to establish the intentional tort exception to worker’s compensation immunity, and the failure to prove any one of the elements will prevent the exception from applying.  The elements are:

1) employer knowledge of a known danger . . . based upon prior similar accidents or explicit warnings specifically identifying the danger that was virtually certain to cause injury or death to the employee;

2) the employee was not aware of the danger . . . because it was not apparent; and

3) deliberate concealment or misrepresentation by the employer . . . preventing employee from exercising informed judgment as to whether to perform the work.

 

Ramsey, supra (internal citation omitted).

 

There was no evidence to suggest that the employee was not aware of the danger involved in cleaning the inside of the cement mixing box and that he had to be aware based on working on the machine in the past, which was inherently dangerous in of itself.  This alone supported the application of the workers compensation immunity and there likely would have been a lot more facts (or facts the employee’s estate would not be able to prove) supporting the immunity.

 

Intentional Tort Exception as to Fellow-Employee

 

The appellate court, however, reversed the summary judgment as to the fellow-employee finding that a jury could find that the fellow-employee acted with gross negligence causing the death of the employee.

 

In order to establish that Gubbins [fellow-employee] acted with gross negligence when he turned on the pug mill while Ramsey [employee] was still inside, the parents [representatives of estate] were required to present evidence as to each of the following three elements:

1) circumstances constituting an imminent or clear and present danger amounting to a more than normal or usual peril [;]

2) knowledge or awareness of the imminent danger on the part of . . . [Gubbins;] and

3) an act or omission [on the part of Gubbins] that evinces a conscious disregard of the consequences. 

Ramsey, supra.

 

 

 

The estate had evidence that the fellow-employee directed the decedent-employee inside the cement mixing box and then activated the box without utilizing any safety system or checking to see if the decedent-employee was still inside.  Based on this evidence, a jury could conclude that the fellow-employee was grossly negligent in activating the mixing box.

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

SLAVIN DOCTRINE AND DEFENSE FROM PATENT DEFECTS

shutterstock_1094947985The Slavin doctrine is an affirmative defense primarily geared to the personal injury context designed to protect contractors from third-party negligence-type claims when an owner accepts a patent defect.  

 

The Slavin doctrine protects contractors from liability for injuries to third parties by presuming that the owner has made a “reasonably careful inspection” of the contractor’s work prior to accepting it as completed; if the owner accepts the contractor’s work as complete and an alleged defect is patent, then the owner “accepts the defects and the negligence that caused them as his own,” and the contractor will no longer be liable for the patent defect.

 

“[T]he test for patency is not whether or not the condition was obvious to the owner, but whether or not the dangerousness of the condition was obvious had the owner exercised reasonable care.” While in most cases, the patency or latency of a dangerous condition is a question of fact for the jury, thereby precluding summary judgment, there are exceptions where the undisputed material facts establish that if there was a defect, then that defect would have been patent.

Valiente v. R.J. Behar & Company, Inc., 2018 WL 2708712, *2 (Fla. 3d DCA 2018) (internal quotations omitted).

 

Valiente is a recent decision where the trial court, as affirmed by the appellate court, ruled in favor of contractors (and an engineer) as to the applicability of the Slavin doctrine in a wrongful death action.  In this case, the decedent was killed in 2008 when his motorcycle ran into another vehicle at an intersection.  The estate claimed that the shrubs in the swale create a dangerous condition by blocking the view of motorists and causing the accident.  The shrubs were planted in 2005 as part of a city’s roadway project.   The estate sued the city, the designer, the general contractor, and the nursery hired by the city to provide the landscaping for the roadway project.

 

The designer, contractor, and nursery moved for summary judgment on their Slavin doctrine affirmative defense.  They all claimed they should be relieved of liability for the accident (and, thus, the death) because the work was long completed, the City accepted the work, and the alleged defect dealing with the shrubs blocking passing motorist’s views was patent.  The evidence revealed that when the shrubs were originally planted they were 2 feet taller than the maximum height required.  

 

For purposes of patency under the Slavin doctrine, the relevant question is: if the plantings [shubs] created a visual obstruction (the alleged dangerous condition), was that dangerous condition latent or patent? And, to reiterate, the test for patency, is not what the City knew, but rather, what the City could have discovered [the dangerous condition] had the City performed a reasonably careful inspection.  

Valiente, 2018 WL at *2.

 

Here, because the it was ruled that the city accepted a patent defect, the Court granted summary judgment in favor of the defendants on their Slavin doctrine defense.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

CONSTRUCTIVE CHANGE DIRECTIVES / DIRECTED CHANGES

shutterstock_716540956Prime contracts typically contain a constructive change directive clause.   A constructive change directive also goes by the acronym CCD (and for purposes of this article, such changes will be referred to as a CCD), however it can also be known as a Work Change Directive, Interim Directed Change, or Directed Change, depending on the type of contract beign utilized.   An owner can order a CCD, versus issuing the contractor a formalized change order, as a mechanism to direct the prime contractor to perform work if there is a dispute as to contract amount, time, or scope.  Just because an owner issues a CCD does not mean the owner is conceding that it owes the contractor a change order.  Rather, the owner is ordering the CCD as a mechanism to keep the project moving forward notwithstanding a disagreement with the contractor as to the price or time impact.  Standard form construction agreements such as the AIA, EJCDC, or ConsensusDocs, will have a standard provision dealing with change directives where the owner can order the contractor to proceed with work in the absence of a change order.  In the federal government context, most construction contracts will contain a changes clause that authorizes the government to formally direct changes; and, there is authority for contractors to equitably pursue a constructive change based on certain directives or instructions issued by the government.  Naturally, from the contractor’s perspective, this CCD provision is an important consideration as it could likely require the contractor to finance a change to the owner’s project, particularly if there is a scope dispute where the owner does not believe the contractor is entitled to any change order.  

 

An example in the federal government context can be found in the Armed Services Board of Contract Appeal’s decision in Appeal Of – Buck Town Contractors & Co., ASBCA No. 60939, 2018 WL 679564 (2018), dealing with the reconstruction of a hurricane protection levee.  The prime contract required the contractor to place a layer of geotextile material at the base of the levee.  The specifications required the material placed such that all seams and overlaps were installed perpendicular to the centerline of the levee.  The contractor’s subcontractor, however, placed the geotextile material such that overlaps ran parallel (not perpendicular) to the centerline of the levee.   The government objected to the method of the contractor’s placement of the geotextile material and directed the contractor to remedy the incorrect method (i.e., redo the incorrect work).   The contractor interpreted this instruction or directive as a constructive change directive and submitted a Request for Equitable Adjustment (REA) associated with the directive claiming that it installed the geotextile material based on the interpretation of other provisions in the specifications.  The government denied the REA and the contractor followed-up with a formal claim, which was also denied.

 

The Armed Services Board of Contract Appeals ultimately held that the prime contractor was not being directed to perform additional work, or work contrary to the contract.  The Board found that the contract required the contractor to place the geotextile material so that all seams and overlaps were perpendicular to the centerline of the levee, which necessarily prohibits the contractor from placing seams and overlaps parallel to the centerline.   As a result, the directive for the contractor to redo work was not a constructive change that authorized the contractor to additional compensation.

 

As mentioned above, the CCD provision is a valuable provision for owners in prime contracts to keep the project moving forward.  Contractors need to consider this clause in conjunction with instructions and directives received from the owner during the course of construction that authorizes the contractor to perform claimed additional work as such work can have both a cost and time impact.   If the requirements of the contract are changed and the contractor is directed to proceed with additional work, it is important that the contractor consider the directive in accordance with the provisions of its contract and preserve its rights and notify the owner accordingly. 

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.