Workers' Compensation insurance coverage is required for any Florida
Employer that employs more than three employees. This requirment is more
strict for employers in the construction industry who need to secure coverage
just for having one or more employees. If an employer is without coverage
despite being required to maintain coverage, the employer becomes liable
for all of the benefits provided that employee by the Florida Workers'
Compensation Act. This is a scenario no employer ever wants to be in as
one industrial accident is all it may take to take any small business
out of business. Not many employers could manage the additional expense
if they suddenly have to pay all of the lost wages, legal fees and medical
benefits out of the company's operating account. Unfortunately, exposure
for proving an employee with workers' compensation benefits is not
the only exposure that exists if the employer is uninsured. An additional
exposure to keep in mind falls under Section 440.11(1)(a) which states:
If an employer fails to secure compensation as required by this chapter,
an injured employee, or the legal representative thereof in case death
results from the injury, may elect to claim compensation under this chapter
or to maintain an action at law or in admiralty for damages on account of such injury or death. In such
action the defendant may not plead as a defense that the injury was caused
by the negligence of a fellow employee, that the employee assumed the
risk of the employment,
or that the injury was due to the comparative negligence of the employee. (emphasis added).
This option given to the injured worker can create significant exposure
far above what you would be limited to if the claimant chose to file a
civil negligence suit against you rather than pursuing benefits through
workers’ compensation. In workers’ compensation, the employee
is limited to recovering medical care and lost wages. However, in a tort
action, the claimant can pursue many other causes of actions such as “pan
and suffering” which would not be available to him under workers’
compensation.
Although the injured employee would have to prove ordinary negligence,
the standard for doing so is made very low. The Act states that even the
employer is found to be minimally negligent with the lion’s share
of liability falling directly on the injured worker, you still are responsible
for paying 100 percent of an award. Consequently, if the employer is just
one percent responsible for the accident, the employee will be awarded
100 percent of the damages. If an employer finds that it does not have
proper coverage, it is important to secure coverage immediately. We can
assist employers in securing coverage and definding claims that occur
during the period of time that the employer is without coverage.