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THE IMPOSSIBILITY OF THE INTENTIONAL TORT EXCEPTION IN WORKERS COMPENSATION CASES

Civil trial law can be a complex and challenging area of law, where lawyers and parties face barriers for justice at every turn. One challenging aspect, and certainly a substantial barrier, lies within the intentional tort exception to workers’ compensation immunity.

In general, the workers’ compensation laws of the State of Florida are the exclusive remedy for damages for employees injured on the Job. This exclusive remedy is known as workers’ compensation immunity. Employers are shielded from any other type of civil action, including wrongful death or personal injury claims based on general negligence.

One exception to this immunity is the intentional tort exception, set forth in section 440.11(1)(b)(2), Florida Statues (2009). One has to question whether this is truly an exception or just another barrier to justice.

The revisions to the 2009 statute create a difficult issue for all claimants attempting to apply the exception. How they can ever overcome the “virtually certain” language of the statute? In a January 2013 decision, the 4th District Court of Appeal noted that “The change from substantial certainty to virtually certain is an extremely different and manifestly more difficult standard to meet. It would mean that a plaintiff must show that a given danger will result in an accident every, or almost every, time”. Dalien v. List Industries Inc. 107 So.3d 470 (Fla. 4th DCA 2013).

This nearly impossible hurdle of having to prove that an accident is virtually certain has resulted in almost every intentional tort exception claim being dismissed by the appellate court since the statute was amended in 2009. This burden has resulted in victims suffering catastrophic damage and in some cases even death and leaving them with virtually no remedy against an at fault employer.

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