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.