LOUIS A. MARTA, APPELLANT,
v.
CONTINENTAL MANUFACTURING COMPANY, INC., A FLORIDA CORPORATION, RESERVE INSURANCE COMPANY, CHESTER TOZZI, BRUENING & BOND INSURANCE AGENCY, INC., APPELLEES
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The court held that an employee's right to sue an employer for negligence in circuit court accrues only after it is determined that the employer failed to secure workers' compensation insurance coverage.
An employee injured on the job filed a workers' compensation claim, which was disputed. A judge determined the employer status but found no insurance …
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BARKETT, ROSEMARY, Associate Judge.
Louis A. Marta, plaintiff in the trial court, appeals the entry of a final order dismissing his complaint with prejudice. We reverse.
Marta was an employee of the defendant, Continental Manufacturing Company, Inc., when he was injured on the job. He filed a workmen’s compensation claim based on this injury, but Continental’s insurance carrier disputed the existence of coverage, claiming that Continental’s policy had not taken effect until several days after Marta’s accident. The matter was submitted to a Judge of Industrial Claims who, after conducting a hearing, determined both that Continental was Marta’s employer and that Continental did not have workmen’s compensation insurance coverage.
Marta then filed a suit in circuit court pursuant to Section 440.11(1), Florida Statutes (1979). Continental moved to dismiss the complaint on the ground that Marta’s original filing of a claim in the Industrial Claims Court constituted an election of remedies which precluded him from later pursuing an action in the circuit court. The trial court granted the dismissal with prejudice.
Section 440.11(1), Florida Statutes (1979), provides that an employee can sue an employer in circuit court for negligence only if the employer fails to secure insurance coverage. Thus, we agree with Marta’s contentions that his right to sue in circuit court did not accrue until it had been determined that Continental lacked insurance coverage. Since suit in circuit court was not an option available to Marta prior to tha1 determination, he could not have made an election of remedies.
For the foregoing reasons, we reverse the order dismissing the plaintiff’s complaint with prejudice, and remand to the trial court for further proceedings consistent herewith.
REVERSED AND REMANDED.
DOWNEY and MOORE, JJ., concur.
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Mena v. J.I.L. Constr. Grp. Corp., 79 So. 3d 219 (Fla. 4th DCA 2012)…of J.I.L. and Slorp, under the circumstances of this case Mena was not required to litigate his claims to a final adjudication in the worker’s compensation forum. For this proposition, J.I.L. and Slorp rely on Marta v. Continental Manufacturing Co., 400 So. 2d 181 (Fla. 4th DCA 1981). In Marta, an injured employee filed a claim for worker’s compensation benefits, and the employer’s carrier disputed the existence of coverage. Id. After a hearing, a worker’s compensation judge determined that, in fact, the empl…
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Walker v. I.T.D. Indus., Inc., 437 So. 2d 230 (Fla. 2d DCA 1983)…idavits and moving for summary [*232] judgment or by proving this assertion at trial, we cannot consider this issue at this stage of the proceedings. I.T.D. relies heavily on the holding of our sister court in Marta v. Continental Manufacturing Co., 400 So. 2d 181 (Fla. 4th DCA 1981). However, that case presents a different fact question and is distinguishable from the instant case. On the other hand, in Sullivan v. Liberty Mutual Insurance Co., 367 So. 2d 658 (Fla. 4th DCA), cert. denied, 378 So. 2d 350 (Fla…
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