In a wrongful death action, if the action arises from an accident within the scope of the Worker’s Compensation Act exclusively, the defendant may file a motion to dismiss the action or a motion for summary judgment. However, there are exceptions to the exclusivity of the Workers’ Compensation Law coverage. When the death of an employee is caused by an intentional tort committed by the employer, the action will be deemed to be an intentional tort and outside of the scope of the Worker’s Compensation Law. The personal representative, however, must prove by clear and convincing evidence the following:

• The employer purposely intended to injure the employee; or
• The employer engaged in conduct that he or she knew, based on prior similar incidents or explicit warnings specifically identifying a known danger, which was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not evident and the employer purposely concealed or misrepresented the danger to prevent the employee from exercising informed judgment about whether to perform the work. If the survivors are entitled to compensation for the decedent’s death, the employer must pay actual funeral expenses, not to exceed $7,500.

Florida courts have extended the definition of the intentional conduct to that conduct that is “substantially certain” instead of “virtually certain.” Although there is no statutory test for an employer’s knowledge that its conduct is substantially certain to result in injury, nonexclusive factors that a court may consider in determining if the conduct constituted an intentional tort are:

• The employer had knowledge of previous similar incidents or accidents resulting from such conduct; or
• Had received explicit warnings specifically identifying a known danger arising from the conduct.

Additionally, if the employer conceals from the employee its knowledge that its conduct resulted in a defect or hazard that presents a great threat of injury, the employer is presumed to have known that the harm was substantially certain to result from its conduct. A Florida Wrongful Death Attorney should consider that initiating a workers’ compensation action to a conclusion on the merits will be deemed as an election of remedies, and preclude any recovery in tort based on the employer’s intentional conduct. However, merely accepting some workers’ compensation benefits will not constitute an election of remedies.

If your loved one died as a result of an injury that occurred in the course of his or her employment and you believe the conduct was intentional, you should know your rights. Make sure Florida attorney is knowledgeable in the area Workers’ Compensation Law and Florida’s Wrongful Death Act. Call Sharmin & Sharmin P.A. 1-800-74-TRIAL.