ROBERT WISHART, II, APPELLANT,
v.
LAIDLAW TREE SERVICE, INC., A FOREIGN CORPORATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
An employee injured during his lunch break sued his employer for negligence after the brakes failed on a company truck. The trial court granted summary judgment for the employer based on the employee's acceptance of worker's compensation benefits. The appellate court reversed, holding that acceptance of worker's compensation payments does not constitute an election of remedies or bar to a negligence action, and that the critical factual question of whether the injury occurred within the course and scope of employment must be resolved at trial.
Acceptance of worker's compensation payments does not constitute an election of remedies, waiver, or bar to a negligence action against the employer. The critical factual issue to be determined at trial is whether the employee was injured in the course and scope of his employment. If the injury occurred within the scope of employment, worker's compensation is the exclusive remedy; if outside the scope of employment, the employee may pursue a tort action, with any worker's compensation benefits paid serving as a setoff.
[1] Acceptance of worker's compensation benefits does not constitute an election of remedies or bar an employee from pursuing a tort action against an employer.
[2] An employee's recovery against an employer for an injury suffered in the course and scope of employment is exclusively worker's compensation.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Acceptance of the payments constitutes no election of remedies and no bar to this action, whether based on waiver or estoppel.”
Establishes the core holding that accepting worker's compensation benefits does not bar a subsequent negligence action.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRobert Wishart II was injured on February 27, 1989, while on an unpaid half-hour lunch break when brakes failed on a flat-bed truck owned by his emplo…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Course And Scope Of Employment cases and more on FLexlaw
PER CURIAM.
The appellant (the employee) was injured while on his unpaid one-half hour lunch break when the brakes failed on a flat-bed truck owned by the appellee (the employer), causing the truck to roll into an adjacent work truck, pinning the employee between the two vehicles and causing him serious injury. The accident occurred on February 27,1989. While the employee was hospitalized for treatment of his injuries, he began to receive payments of worker’s compensation benefits and continued to receive such payments until July or early August. At no time did the employee make any claim for worker’s compensation benefits.
The employee brought this action against the employer on April 25, 1989, alleging that the accident which caused him injury was due to the negligence of the employer. The employer filed a motion for summary judgment and that motion was granted. Final summary judgment in favor of the employer was entered on February 19, 1990. The employee appeals and we reverse.
The final summary judgment does not set forth the basis upon which summary judgment was granted. However, the parties agree that the trial judge concluded that the employee was not entitled to any recovery against the employer because the employee had received payments of worker’s compensation benefits. The parties argue whether the employee thereby made an election of remedies or by accepting the payments is barred from pursuing this action. Acceptance of the payments constitutes no election of remedies and no bar to this action, whether based on waiver or estoppel. See Velez v. Oxford Dev. Co., 457 So. 2d 1388 (Fla. 3d DCA 1984).
The facts in Velez are remarkably similar to the facts in this case. The Velez court pointed out that election of remedies by its very terms presupposes that a plaintiff has at least two viable theories upon which recovery may be had. That is not the case with respect to an injured employee. Where an injury is suffered in the course and scope of employment, worker’s compensation is the exclusive remedy for recovery against the employer. § 440.11, Fla.Stat. (1989). That remedy is not available where an injury is suffered outside the course of employment. § 440.09(1).
In this situation, neither election of remedies, waiver, or estoppel applies simply because the employee accepts payment of worker’s compensation benefits after he is injured. The critical issue of fact which must be determined by the trial judge is whether the employee was injured in the course and scope of his employment. It is obvious from the arguments on this appeal that this issue of fact is hotly contested. If it is determined, after hearing on the merits, that the employee was injured in the course of his employment, then the employer’s obligation is to pay only such additional worker’s compensation benefits as to which the employee can prove entitlement. If the accident was not in the course of employment, and the employee can prove fault on the part of his employer in a tort action, the employer will be entitled to set off the worker’s compensation benefits paid out of the proceeds from the tort action.
The trial judge erred in entering summary judgment for the employer. We reverse and remand for further proceedings in accordance with this opinion.
Reversed and remanded.
DANAHY, A.C.J., and FRANK and PARKER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
-
Jones v. Martin Elecs., Inc., 932 So. 2d 1100 (Fla. 2006)…employee is not precluded from filing an action against his or her employer for intentional conduct substantially certain to result in injury simply because some workers’ compensation benefits have been paid. See Wishart v. Laidlaw Tree Serv., Inc., 573 So. 2d 183, 184 (Fla. 2d DCA 1991); Velez v. Oxford Dev. Co., 457 So. 2d 1388, 1390 (Fla. 3d DCA 1984). Precluding a worker from pursuing a remedy for a workplace injury caused by an employer’s intentional tortious conduct would conflict with the intent and sp…
-
Wheeled Coach Indus., Inc. v. Annulis, 852 So. 2d 430 (Fla. 5th DCA 2003)…preclude a subsequent intentional tort suit. Hernandez v. United Contractors Corp., 766 So. 2d 1249 (Fla. 3d DCA 2000); Lowry v. Logan, 650 So. 2d 653 (Fla. 1st DCA 1995), rev. denied, 659 So. 2d 1087 (Fla.1995); Wishart v. Laidlaw Tree Serv., Inc., 573 So. 2d 183 (Fla. 2d DCA 1991); Velez v. Oxford Dev. Co., 457 So. 2d 1388 (Fla. 3d DCA 1984), rev. denied, 467 So. 2d 1000 (Fla.1985). Based on the undisputed facts, the trial court concluded that Annu-lis did not actively pursue workers’ compensation benefits.…
-
Vallejos v. LAN Cargo S.A., 116 So. 3d 545 (Fla. 3d DCA 2013)…t”); Wright v. Douglas N. Higgins, Inc., 617 So. 2d 460, 461-62 (Fla. 3d DCA 1993) (reversing summary judgment because there was no determination that plaintiff was an employee in the workers’ compensation case); Wishart v. Laidlaw Tree Serv., Inc., 573 So. 2d 183, 184 (Fla. 2d DCA 1991) (“The critical issue of fact which must be determined by the trial judge is whether the employee was injured in the course and scope of his employment.”); Velez v. Oxford Dev. Co., 457 So. 2d 1388, 1391 (Fla. 3d DCA 1984) (re…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Velez v. Oxford Dev. Co., 457 So. 2d 1388 (Fla. 3d DCA 1984)