On Wednesday, August 13, 2014, 11th Circuit Trial Judge Jorge E. Cueto entered a Summary Final Judgment Order declaring the exclusive remedy provision of the Workers’ Compensation Act (the Act) unconstitutional. In Julio Cortes v. Velda Farms LLC (Case No. 2011-13661-CA-25 in Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County; also captioned Florida Workers’ Advocates, Workers’ Injury Law & Advocacy Group, Elsa Padgett v. State of Florida, Office of the Attorney General), petitioners asked the court to decide if injured workers should have the right to pursue damages outside of the workers' compensation system, thereby negating the exclusive remedy principle. Judge Cueto agreed and further stated that the current workers' compensation law did not provide adequate benefits compared with the tort system. Petitioners included Florida Workers’ Advocates (FWA) and the Workers' Injury Law & Advocacy Group (WILG). WILG is a national organization of attorneys representing injured workers. FWA is an organization of attorneys representing injured workers in Florida.

The complaint for damages was originally brought by an employee against an employer based on the alleged negligence of the employer. The affirmative defense of workers' compensation immunity under Fla. Stat. §440.11 was timely raised. The complaint was later amended to add Count IV, seeking declaratory relief that Fla. Stat. §440.11 (the exclusive remedy provision of the Workers’ Compensation Act) be deemed invalid because it violated the Due Process Clause of the 14thAmendment of the U.S. Constitution; the Access to Courts provision of Article 1, §21 of the Florida Constitution, a violation of the Florida Constitution's right to trial by jury; and a violation of the Florida Constitution’s right to be Rewarded for Industry. FWA, WILG and Elsa Padgett were granted the right to participate as parties. Thereafter, the employer-defendant in the underlying negligence case withdrew its affirmative defense of workers' compensation immunity and sought to be severed from the declaratory relief portion of the amended complaint. Severance was granted and this case proceeded independently.

Fla. Stat. §440.11 states in its relevant part, and excluding statutory exceptions, as follows:

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death…

Judge Cueto declared the exclusive remedy statute unconstitutional and cited the numerous repeals of benefits since 1968, and specifically the Florida reforms of 2003, whereby the Act no longer provided any benefits for permanent partial disability. Judge Cueto wrote, "I find that the Florida Workers' Compensation Act, as amended October 1, 2003, does not provide a reasonable alternative remedy to the tort remedy it supplanted. It therefore cannot be the exclusive remedy. 440.11 is constitutionally infirm and invalid." Order on Amended Motion for Summary Final Judgment, entered on August 13, 2014, Julio Cortes v. Velda Farms LL, 11th Judicial Circuit in and for Miami-Dade County, Case No. 2011-13661-CA-25, pages 19-20.

According to Judge Cueto, the Workers’ Compensation Act impinged on fundamental rights and overpowered public necessity:

As to safety, the Act and the rest of the Florida laws fail miserably. The legislature abolished the Florida Division of Safety and all safety rules and regulations leaving OSHA to regulate all Florida private business and no agency to regulate the safety of government employees. As to promoting Health, the Act fails miserably. It allows Employers to avoid and evade responsibility for injury by apportioning medical care expenses; part paid by the employer and the balance the responsibility of the injured worker. If the employee cannot afford his or her share, no medical care at all is provided. Doctors and hospitals are not required to accept partial payment for their services. After Maximum Medical Improvement, there is an employee paid co-payment for reasonable and necessary medical care. As to welfare, the Act fails miserably. There is no replacement for wages lost due to permanent injury unless the disability is total. If total, benefits end at age 75 or after 5 years of benefits are paid out. As to Morals, the Act fails miserably. Id. pages 11-12.

Judge Cueto explained that the  statute is presumed unconstitutional subject to strict scrutiny, and there was no evidence whatsoever of the statute advancing a compelling state interest. Id. at page 12. Therefore, Judge Cueto deemed the statute unconstitutional and denied the Motion for Rehearing. This Final Summary Judgment Order is not binding on any other jurisdiction or on any other judges even in the 11th Circuit; however, it remains persuasive.

Florida's Attorney General filed a Notice of Appeal on August 26, 2014, seeking review by the Third District Court of Appeal. If the Third District Court of Appeal accepts jurisdiction, its ruling (either affirming or reversing the Final Summary Judgment Order) will become the law for the Third District, and could then be followed by the remaining districts throughout the state of Florida. However, there is a significant possibility that the question will be certified to the Florida Supreme Court soliciting a formal opinion. This could also trigger new state legislation on the issue.

If the Third District Court of Appeal (or ultimately the Florida Supreme Court) affirms the Trial Court Order, it will cause severe repercussions in the way workers’ compensation claims are handled in Florida. Should that occur and the workers’ compensation benefits are held inadequate, employees may be able to successfully sue employers based on simple negligence – as opposed to the current arrangement, where employees can only sue employers directly when the employer “deliberately intends to injure an employee,” or when the employers are “engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, 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 apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.” Fla. Stat. §440.11 (b)(1) and (2).

Employers will anxiously wait to see whether the Third District Court of Appeal decides to uproot current law and determine that the exclusive remedy of the workers’ compensation law is unconstitutional. Time will tell.