Anyone who’s ever worked on a construction site knows that the work of building, clearing, excavating and the like can be very dangerous. That’s why Florida law requires contracting companies to obtain workers’ compensation insurance for each of their onsite employees. As an incentive to obtain the proper coverage, however, the law also makes complying companies immune from personal injury liability through all other legal channels for injuries stemming from onsite accidents. But, as the Fifth District Court of Appeal explains in Lovering v. Nickerson, the doctrine of workers’ compensation immunity’s applicability to a specific accident depends on whether the person injured was an “employee” at the time.
Plaintiff Homer Lovering sued defendants Middlesex Corporation (his employer) and Leslie Nickerson (a Middlesex employee) for injuries he sustained while working for Middlesex as a heavy equipment operator on a road project in which workers removed concrete barriers. Specifically, Plaintiff was struck by a large concrete barrier as it was being loaded onto the flatbed of the tractor trailer truck that he was driving. As a result of his injuries, both of Plaintiff’s legs were amputated. Defendant Nickerson was operating a fork lift used to load the barrier at the time of the accident.
The trial court hearing Plaintiff’s complaint granted summary judgment to Defendants, finding that because Plaintiff was a Middlesex employee at the time of the accident, Defendants are immune from liability for the injuries pursuant to the Florida Workers’ Compensation Act (the Act). The statute provides that contractor company working on a construction site must provide workers’ compensation of each if its employees. In turn, the contractor receives immunity from negligence liability for injuries suffered by any employee at the site. The statute’s mandatory coverage and immunity, however, apply only to so called “statutory employees,” which in the construction context are defined as an independent contractor performing services in – or a sole proprietor engaged in – “the construction industry.” The industry, for statutory purposes, encompasses “for-profit activities involving any building, clearing, filling, excavation, or substantial improvement in the size or use of any structure or the appearance of any land.”
In reversing the trial court’s decision, the Fifth District ruled that the Act does not bar Plaintiff from suing for personal injuries in this matter because was not working or performing services in the “construction industry” at the time of the injury and, therefore, is not an employee covered by the Act.
Negligence is the most common theory of recovery for persons injured in any type of accident, including construction accidents as well as car, motorcycle and boat accidents and incidents of medical malpractice. In order for a plaintiff to successfully assert that a defendant was negligent, he or she must show that: 1) the defendant owed the plaintiff a “duty of care”; 2) the defendant breached the “duty of care”; 3) the plaintiff was injured; and 4) the breach caused the plaintiff’s injury.
If you were injured in an accident due to another person’s negligent behavior, call the Fort Lauderdale personal injury attorneys at Anidjar & Levine for a free consultation. Our lawyers can speak with you about whether you might be entitled to compensation for your injury. You can reach our Florida offices at 800-747-3733 or submit an on-line form to contact us today.
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