Disability Law

'Horizontal Immunity' Protects Subcontractor from Tort Liability

By David A. McCranie, Esq.

One of the many changes wrought by the 2003 amendments to the Florida Workers' Compensation Law was a change regarding immunity from tort liability for subcontractors on construction jobs.  Specifically, the 2003 amendment to §440.10 now provides so-called "horizontal immunity" from tort liability for injuries to employees of other subcontractors provided that: (1) the defendant subcontractor has secured workers' compensation insurance coverage for its own employees; and (2) the defendant subcontractor's own "gross negligence" was not the "major contributing cause" of the injuries.  Here's an article from the 12/4/2007 edition of the Florida Times-Union which illustrates the effect of this amendment in one case.

One of the attorneys quoted in the article questions the constitutionality of this amendment.  I'm not sure what the courts would say about this.  On the one hand, the Florida Supreme Court held that a 1971 amendment to §440.11 was an unconstitutional denial of "access to courts"  [see Art. I, §21, Fla. Const.] insofar as it purported to abolish a cause of action for indemnity against an employer by a third-party tortfeasor.  See Sunspan Engineering & Const. Co. v. Spring-Lock Scaffolding Co., 310 So.2d 4 (Fla. 1975).  On the other hand, that court later held that a 1978 amendment to §440.11 which raised the standard for bringing a liability claim against a co-worker of the same employer from simple negligence to "gross negligence" did not deny the injured worker access to courts.  See Iglesia v. Floran, 394 So.2d 994 (Fla. 1981).

Full post as published by Florida Workers’ Compensation Law Blog on December 05, 2007 (boomark / email).