Business and Insurance Groups Defend Exclusive Remedy in FWA Lawsuit
by Sherri Okamoto (Legal Reporter) – January 15, 2015
Groups representing Florida businesses and insurers are stepping up to defend the state workers' compensation system as the exclusive remedy for injured workers, filing amicus briefs Monday in the case now known as The State of Florida v. Florida Workers' Advocates.
Miami-Dade Circuit Judge Jorge Cueto stunned system participants last August when he ruled that the benefits available to workers under the comp system had become so decimated that a workers' comp claim was no longer an adequate substitute for a tort cause of action, as a matter of law.
Florida Attorney General Pam Bondi is appealing this ruling to the state's 3rd District Court of Appeal, even though she is arguing that she was never properly made a defendant in the proceedings.
The Florida Chamber of Commerce, Florida Justice Reform Institute, Associated Industries of Florida, Associated Builders and Contractors of Florida, Florida Insurance Council, Property Casualty Insurers Association of America, Florida Retail Federation, American Insurance Association, National Federation of Independent Business, Florida United Businesses Association, Sedgwick Claims Management Services, Florida Association of Insurance Agents and various other trade associations are all backing her position.
Carolyn Johnson – the director of business economic development and innovation policy for the Florida Chamber of Commerce – said her group got involved because "throwing out the exclusive remedy would mean Florida employers could be subject to more litigation and may be subjected to additional costs when workers get hurt."
The Florida comp system "has been in place for 80 years and has been working just fine," she opined, and while the benefits afforded under it have changed over the years, Johnson said "there's still plenty of remedy in the workers' compensation system for an injured worker to receive the treatment they should receive."
William Large of the Florida Justice Reform Institute said Wednesday that his group decided to join in the litigation because it believes "the Florida business community needs to defend the reliable and available system for compensating workers for workplace injuries."
He insisted that "the workers' compensation system works," and if Cueto's ruling stands, this "will have an adverse impact on the rights and the benefits afforded to workers in the state of Florida" since they lose the no-fault aspect of comp if they move into the civil arena.
The case arose out of a 2011 negligence suit that Julio Cortes filed against his employer, Velda Farms, for an alleged workplace injury.
After Velda Farms raised workers' compensation exclusivity as a defense, Cortes sought a declaratory judgment that Florida Statutes Section 440.11 – which immunizes employers from civil liability if they provide workers' compensation insurance to their employees – was unconstitutional.
Cortes provided notice of his constitutional challenge to the Attorney General's Office – as required by the Florida Rules of Civil Procedure – but he never joined the state or the AG as defendants.
In May 2012, Florida Workers’ Advocates and the Workers’ Injury Law and Advocacy Group joined the case as additional plaintiffs to Cortes' declaratory judgment cause of action.
After this, Velda voluntarily dismissed its immunity defense. It then asked to have the declaratory relief claim dismissed as moot.
But FWA and WILG asked the trial judge to sever the declaratory judgment claim instead and allow FWA to litigate the constitutionality of Section 440.11 in a separate proceeding.
The judge granted their request and directed that Bondi's office be named as the defendant in the declaratory relief action, since Velda Farms was no longer involved in litigating the severed claim.
FWA and WILG then made two unsuccessful motions for summary judgment and added Elsa Padgett as an additional plaintiff in the declaratory relief action.
Padgett asserted she had been injured in the course of her employment with Miami-Dade County and she had an interest in the dispute because she wanted to know if she had the option of suing her employer in tort.
However, up until this point, there had been no participation in the litigation from Bondi's office.
Last July, Cueto issued an order for Bondi to show cause why he shouldn't issue summary judgment in favor of FWA and WILG. Bondi's office responded that Cueto couldn't grant summary judgment because there was no defendant to enter the judgment against.
Bondi's office contended that neither it nor the state had ever been made parties to the declaratory relief action, and that they wouldn't be the appropriate defendants for that claim anyway.
Cueto in August entered summary judgment for FWA, WILG and Padgett without discussing the arguments made by Bondi's office.
After Cueto denied rehearing, Bondi's office petitioned the 3rd DCA for review.
Chief Deputy Solicitor General Adam S. Tanenbaum filed the opening brief on the merits for the state on Jan. 2.
He accuses FWA and WILG of engaging in a "series of improper and unnecessary steps" to make the case into a "procedural morass" and get "a final judgment with no legal effect."
Tanenbaum says the FWA and WILG "commandeered a routine, existing tort case to litigate a constitutional issue that presented no live controversy" and then purported to present claims against the state "without ever attempting to present a pleading stating so or, at a minimum, serving process."
And then, they "sought and obtained a final judgment listing the state as a respondent, despite never properly joining any party," which "creates the potential for substantial confusion and uncertainty throughout the state," Tanenbaum contends.
He's asking the court to simply vacate Cueto's ruling as "a nullity," although he is also arguing that the decision could be overturned on its merits as well.
"Florida’s workers' compensation law is constitutional," Tanenbaum insists, and a facial challenge had to fail because FWA and WILG "failed to establish beyond doubt that there is no set of circumstances under which the law – which Florida courts repeatedly have upheld as constitutional – can constitutionally be applied."
He says that the comp system "ensures prompt and certain payments for workers’ injuries on the job in return for immunity for employers who provide coverage for those payments," which is what it was designed to do, and so FWA and WILG could not "demonstrate constitutional invalidity 'beyond reasonable doubt.'”
The Florida Chamber of Commerce and Florida Justice Reform Institute echoed Tanenbaum's argument that the case is procedurally flawed in their joint amicus brief, authored by Katherine E. Giddings, Gerald Cope and Large.
According to their brief, Cueto took an "unprecedented" approach to declaring the existing workers' compensation system unconstitutional "without a fair adversary proceeding."
They contend that "Florida has long been committed to the proposition that, to hold a statute unconstitutional, there must be a fair process conducted by litigants who have a real controversy in which both sides of the constitutional question are fully and fairly presented." But Cueto "wholly ignored this basic, fundamental proposition," the brief says.
If his ruling is allowed to stand, the Chamber and Reform Institute warn, this "will create substantial uncertainty statewide, resulting in confusion in the area of workers' compensation as well as an avalanche of litigation." Thus, they insist, it should be reversed.
Kenneth B. Bell, a former Florida Supreme Court justice now with the Gunster law firm, filed the brief for the other state amici.
Bell contends that Tanenbaum's jurisdictional arguments are dispositive and correct, but if the 3rd DCA wants to reach the merits of the dispute, that Section 440.11 is constitutional.
He says Cueto "fundamentally erred by declaring the statute facially unconstitutional without making the necessary finding that there is no set of circumstances under which the statute would be valid."
Bell also suggests that the concerns Cueto voiced about the erosion of benefits available to injured workers was "based on unwarranted, misleading factual findings."
And finally, as a practical matter, Bell notes that "hundreds of thousands of employees and employers daily depend on Florida’s workers’ compensation system," and it was up to the Legislature to create and maintain it.
The system depends on "a delicate balance among a myriad of competing interests," and the balancing "should be largely left in the hands of the Legislature," Bell says.
But the position of FWA and WILG is not without its supporters. Their answer to the state's petition will be due later this month, and their amici can then file briefs supporting them.
The Fraternal Order of Police, Police Benevolent Association and International Union of Police Associations' and FWA President Michael Winer have also obtained permission from the 3rd DCA to file amicus briefs in support of FWA and WILG.