The interaction between a release and worker’s compensation laws for an employee
Posted: August 31, 2020 Filed under: Florida, Release (pre-injury contract not to sue) | Tags: #SkiLaw, #YouthCamps, #ZipLineLawyer, Ambiguity, Athletic, contravene, Customer, disclaimer, Employee, Employer, exculpatory, OutdoorLaw, OutdoorRecreationLaw, RecreationLaw, Release, unambiguous, unenforceable, Void, waive, work-related, Worker's Compensation, workplace Leave a commentIf you are injured at work and covered by worker’s compensation you cannot sue your employer. However, you might be able to sue a third party who may be liable for injury.
However, the employer of the plaintiff had the plaintiff sign a release that prevented the employee from suing the place where he was injured, which was upheld by the court.
Merlien v. JM Family Enters, 2020 Fla. App. LEXIS 10525
State: Florida, Court of Appeal of Florida, Fourth District
Plaintiff: Diveston Merlien, Appellant
Defendant: JM Family Enterprises, Inc., Sheridan 441, LLC and Bendles Rentals, LLC
Plaintiff Claims: premises liability
Defendant Defenses: release
Holding: for the defendant
Year: 2020
Summary
The defendant security firm provided onsite security personnel to its clients. The security firm required its employees to sign a release that limited their recovery for an injury to their worker’s compensation benefits. The release would not be effective necessarily against the employer. However, it was effective in keeping the employee from suing the customer of the security firm.
Facts
The plaintiff was employed by AlliedBarton, a firm that provides security services for various clients. He was assigned to work as a security guard for one of those clients. The plaintiff was allegedly injured due to a slip and fall on stairs at the JM facility where he was assigned to work. He subsequently filed a premises liability suit against JM, alleging that his slip and fall was proximately caused by JM’s negligent maintenance of the stairs.
The primary focus of this appeal is the enforceability of a waiver which the plaintiff signed as a condition of employment that prohibits suit against any customer of AlliedBarton for injuries covered by the workers’ compensation statutes.
Two years after the plaintiff filed his complaint, JM filed a motion for summary judgment, arguing that the plaintiff waived his right to bring suit by executing the above waiver at the commencement of his employment. After hearing argument from both parties, the trial court granted JM’s motion for summary judgment. This timely appeal followed.
Analysis: making sense of the law based on these facts.
Worker’s compensation is an insurance system created to take care of the medical bills and lost wages of workers who are injured on the job. Before the creation of the worker’s compensation system, an injured worker had to sue an employer to recover their damages from the injury.
In return for receiving the benefits of worker’s compensation, you give up your right to sue the employer. You can waive those benefits, pay back any benefits or money paid and sue the employer, but that is usually an unwise investment in time and money.
In this case, the employer requested the employees to sign a release, so they could not sue third party customers of the employer. In this case, the security company that employed the plaintiff had their employees, such as the plaintiff, on the property of the customers. The release provided if the employee was injured in a claim that was covered by worker’s compensation, that was the extent of the recovery they could receive. They could not sue the customer of the employer for damages.
This is a smart move on the part of the employer. The employer would lose a customer every time an employee was hurt on the job if the employee sued the customer.
It is important to understand the release did not stop lawsuits against the employer, only customers of the employer. Worker’s compensation statutes stop lawsuits against the employer.
The plaintiff first argued the release was ambiguous and unenforceable. In Florida for a release was enforceable when the release could be read by an ordinary and knowledgeable person who understood what they were contracting away.
Florida courts have upheld the enforceability of exculpatory provisions in contracts only when the language of the provision clearly and unambiguously communicates the scope and nature of the disclaimer.
The law also required a clear an understandable intent.
…provisions are deemed to be unambiguous and enforceable when the language unequivocally demonstrates a clear and understandable intention for the defendant to be relieved from liability such that an ordinary and knowledgeable person will know what he or she is contracting away.
The court found the release was easily read, understood and had no confusing language or made any promises to the signor.
The next argument the plaintiff made was the release was void because it violated Florida’s public policy.
Public policy disfavors exculpatory contracts because they relieve one party of the obligation to use due care. . . . Nevertheless, because of a countervailing policy that favors the enforcement of contracts, as a general proposition, unambiguous exculpatory contracts are enforceable unless they contravene public policy.”
A release violates Florida’s public policy “it is injurious to the interests of the public or contravenes some established interest of society.” The plaintiff argued that Florida’s law allowed employees who received worker’s compensation payments to sue third parties and recover those benefits if the third parties were negligent.
The appellate court held that the law allowing those third-party lawsuits were not a mandatory law but a permissive law. It allowed the lawsuits but did not require them.
The court did open up one area that it might have sided with the plaintiff. If the release was mandatory for employment, the court stated the plaintiff could have rejected the release.
The court concluded by noting that the plaintiff voluntarily entered into the agreement and declined to invalidate the contract on the basis that it was offered on a “take it or leave it” basis.
However, the plaintiff did not plead that in this case or argue it at the time of his employment; Therefore, it was moot. The court also, in one effect closed the loop hole.
…the plaintiff here was not coerced into signing the agreement and voluntarily agreed, as a condition of employment, to limit his avenues for recovery with respect to any future injuries to the State’s workers’ compensation program. The disclaimer was limited in both scope and application and did not prevent the “the quick and efficient delivery of disability and medical benefits to an injured worker.”
The court held the release was valid and prevented the lawsuits against the customer of his employer.
So Now What?
This is a very interesting and carefully thought-out use of a release. The purpose is to keep the clients of the firm happy at the expense of its own employees.
However, it shows another way a release can be used to stop litigation.
What do you think? Leave a comment.
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Cyclists looking for more insurance sought to prove he was employed at the time, court rules he was not. Therefore, he will defend a negligent homicide claim on his own.
Posted: December 18, 2017 Filed under: Cycling, Insurance, New York | Tags: Bicycling, Central Park, Crosswalk, Cycling, Employee, Employer, Excising Control, Exercise of Control, fatality, Negligent Hiring, Negligent Retention, Propensity, Riding Dangerously, Scope of Employment, Supervision and Control, vicarious liability, Vicariously Liable Leave a commentBy bringing a party to a lawsuit with more insurance or money, many times the defendant can escape with fewer damages. This can happen by the defendant’s actions or sometimes when the plaintiff and the defendant work together to create liability for a third party.
Fein, etc., v. Cook, 2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603
State: New York
Plaintiff: Randall Fein, etc.,
Defendant: Neil L. Cook, Defendant, Asphalt Green, Inc., Defendant-Respondent
Plaintiff Claims: Negligence
Defendant Defenses: Was working for his employer at the time of the accident
Holding: Not working for his employer and not covered by his employer’s Insurance
Year: 2017
Summary
The plaintiff and/or defendant attempted to bring the defendant’s employer into the lawsuit as a way to bring more money to the settlement table. The defendant while riding a bicycle killed a pedestrian in a crosswalk in Central Park, New York.
The attempt failed because there was no indication the defendant was under the supervision and control of the employer at the time of the accident.
Facts
The defendant was riding his bicycle when he struck and killed a pedestrian in the crosswalk.
Decedent died from injuries sustained when, while in the middle of a crosswalk in Central Park, he was struck by a bike ridden by defendant Neil Cook, a bicyclist and coach employed by AGI, which operates, among other things, a fitness facility on the Upper East Side.
Defendant cyclists attempted to bring into the case his employer where he worked as a bicycle coach. His employer, Asphalt Green, Inc. (AGI), would have more insurance, more resources to pay off the plaintiff and possibly allow the defendant to escape damages he could never pay.
This decision was based on a motion for summary judgment filed by the Defendant/Respondent alleged employer AGI.
It cannot be determined from the decision if the employer AGI was brought in by the plaintiff or the defendant. Nor was it developed that the plaintiff and defendant had agreed to some type of reduction in damages against the defendant if the employee was found to be working for the defendant at the time, making the employer also liable.
Analysis: making sense of the law based on these facts.
Under New York law, to be working at the time the employer had to be exercising some control over the employee/defendant at the time of the accident. The court did not find any facts to support that allegation and found “there is no indication that AGI was exercising any control over Cook at the time of the accident.”
Nor was the employer separately liable for a claim of negligent hiring and retention of the defendant. To be liable under that theory the employee had to be working for the employer at the time of the accident and the employer had to have known of the employee’s propensity to ride dangerously in Central Park, where the accident happened.
There is no evidence that AGI knew or should have known of Cook’s alleged propensity to dangerously ride his bicycle in Central Park, an element necessary to support the claim for negligent hiring and retention.
The alleged employer was dismissed from the case.
So Now What?
This was a simple way to bring a lot more money to the table for the plaintiff. It might have been done so with the defendant’s help and/or consent. By agreeing to this the defendant might have been able to negotiate with the plaintiff a reduction in the damages he might owe or be completely dismissed from the case upon settlement with the alleged employer.
Although a scary set of facts, you actually see agreements like this often in litigation as the plaintiff’s attempt to get more money than the defendant might have or ever have and the defendant willing to throw his employer under the buss to save his own jersey.
Probably, the defendant already was terminated from his job. You would not want to employ a cycling coach who had killed someone while riding a bike.
What do you think? Leave a comment.
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Central Park, Fatality, Employee, Employer, Supervision and Control, Vicarious
Liability, Vicariously Liable, Scope of Employment, Propensity, Riding
Dangerously, Exercise of Control, Excising Control, Negligent Hiring, Negligent
Retention,
Fein, etc., v. Cook, 2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603
Posted: November 26, 2017 Filed under: Cycling, Legal Case, New York | Tags: Bicycling, Central Park, Crosswalk, Cycling, Employee, Employer, Excising Control, Exercise of Control, fatality, Negligent Hiring, Negligent Retention, Propensity, Riding Dangerously, Scope of Employment, Supervision and Control, vicarious liability, Vicariously Liable Leave a commentFein, etc., v. Cook, 2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603
Randall Fein, etc., Plaintiff-Appellant, v Neil L. Cook, Defendant, Asphalt Green, Inc., Defendant-Respondent.
4478, 110902/10
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603
September 26, 2017, Decided
September 26, 2017, Entered
NOTICE:
THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
COUNSEL: [*1] Clyde & Co., New York (Jeffrey J. Ellis of counsel), for appellant.
Rutherford & Christie, LLP, New York (Michael C. Becker of counsel), for respondent.
JUDGES: Sweeny, J.P., Renwick, Kapnick, Kern, Moulton, JJ.
OPINION
Order, Supreme Court, New York County (Richard F. Braun, J.), entered August 22, 2016, which granted defendant Asphalt Green, Inc.’s (AGI) motion for summary judgment, to the extent of dismissing the amended complaint as against it, unanimously affirmed, without costs.
Decedent died from injuries sustained when, while in the middle of a crosswalk in Central Park, he was struck by a bike ridden by defendant Neil Cook, a bicyclist and coach employed by AGI, which operates, among other things, a fitness facility on the Upper East Side.
The motion court correctly determined that AGI could not be held vicariously liable for Cook’s alleged negligence, as Cook was acting outside the scope of his employment. At the time of the accident, Cook was engaged in a weekend bicycle ride, in a public park, using a bicycle that he purchased and equipped, was alone and was not coaching anyone, and was not acting in furtherance of any duties owed to AGI (see Riviello v Waldron, 47 NY2d 297, 391 N.E.2d 1278, 418 N.Y.S.2d 300 [1979]; Weimer v Food Merchants, 284 AD2d 190, 726 N.Y.S.2d 423 [1st Dept 2001]).
Cook’s unsupported belief, as set forth in an [*2] affirmative defense, that his bicycle riding had a work component to it, and his unsworn Response to the Notice to Admit (see CPLR 3123[a]), which improperly sought admissions as to employment status, a contested issue central to the action (see Berg v Flower Fifth Ave. Hosp., 102 AD2d 760, 476 N.Y.S.2d 895 [1st Dept 1984]), do not create triable issues of fact as to whether Cook was acting in the scope of employment. Unlike in Aycardi v Robinson (128 AD3d 541, 9 N.Y.S.3d 262 [1st Dept 2015]), relied upon by plaintiff, there is no indication that AGI was exercising any control over Cook at the time of the accident (see Lundberg v State of New York, 25 NY2d 467, 255 N.E.2d 177, 306 N.Y.S.2d 947 [1969]).
The motion court correctly dismissed plaintiff’s direct negligence claim against AGI. There is no evidence that AGI knew or should have known of Cook’s alleged propensity to dangerously ride his bicycle in Central Park, an element necessary to support the claim for negligent hiring and retention (see White v Hampton Mgt. Co. L.L.C., 35 AD3d 243, 244, 827 N.Y.S.2d 120 [1st Dept 2006]), and plaintiff’s conclusory allegations of deficient training are insufficient to defeat summary judgment (see Richardson v New York Univ., 202 AD2d 295, 296-297, 609 N.Y.S.2d 180 [1st Dept 1994]).
We have considered plaintiff’s remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 26, 2017
When releases do not work: Employees and Workers Compensation
Posted: November 13, 2013 Filed under: Uncategorized | Tags: Employee, Employer, Independent Contractor, Intern, Negligence, Worker’s Compensation, Workers Compensation Leave a commentState Law prohibits releases for employees if they are covered by Worker’s Compensation.
Prior to the creation of Worker’s Compensation, if an employee was injured at work he had to sue his employer and prove the employer was negligent to recover for his injuries. This created problems for both parties. Injured employees went bankrupt attempting to win a suit and employers injured employees rather than keeping workplaces safe. It was cheaper to fight a lawsuit then make a workplace safe.
With the creation of worker’s compensation the employers and employees both gave up and received benefits. Basically, in return for not suing the employer the employee receives medical care and some of their lost wages.
An employee gives up the right to sue the employer if they accept worker’s compensation benefits. The employer is required to carry worker’s compensation on employees or they can suffer fines or damages levied by the state or if sued by the employee additional damages over what are owed.
Colorado Statutes state that if you accept worker’s compensation you give up other rights to sue.
C.R.S. §§ 8-41-104. Acceptance as surrender of other remedies
An election under the provisions of section 8-40-302 (5) and in compliance with the provisions of articles 40 to 47 of this title, including the provisions for insurance, shall be construed to be a surrender by the employer, such employer’s insurance carrier, and the employee of their rights to any method, form, or amount of compensation or determination thereof or to any cause of action, action at law, suit in equity, or statutory or common-law right, remedy, or proceeding for or on account of such personal injuries or death of such employee other than as provided in said articles, and shall be an acceptance of all the provisions of said articles, and shall bind the employee personally, and, for compensation for such employee’s death, the employee’s personal representatives, surviving spouse, and next of kin, as well as the employer, such employer’s insurance carrier, and those conducting their business during bankruptcy or insolvency.
Georgia Statutes state:
O.C.G.A. § 34-9-11 (2013)
§ 34-9-11. Exclusivity of rights and remedies granted to employee under chapter; immunity granted to construction design professionals
(a) The rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits, and other than a construction design professional who is retained to perform professional services on or in conjunction with a construction project on which the employee was working when injured, or any employee of a construction design professional who is assisting in the performance of professional services on the construction site on which the employee was working when injured, unless the construction design professional specifically assumes by written contract the safety practices for the project. The immunity provided by this subsection to a construction design professional shall not apply to the negligent preparation of design plans and specifications, nor shall it apply to the tortious activities of the construction design professional or the employees of the construction design professional while on the construction site where the employee was injured and where those activities are the proximate cause of the injury to the employee or to any professional surveys specifically set forth in the contract or any intentional misconduct committed by the construction design professional or his employees.
(b) As used in subsection (a) of this Code section, the term “construction design professional” means any person who is an architect, professional engineer, landscape architect, geologist, or land surveyor who has been issued a license pursuant to Chapter 4, 15, 19, or 23 of Title 43 or any corporation organized to render professional services in Georgia through the practice of one or more such technical professions as architecture, professional engineering, landscape architecture, geology, or land surveying.
(c) The immunity provided by this subsection shall apply and extend to the businesses using the services of a temporary help contracting firm, as such term is defined in Code Section 34-8-46, or an employee leasing company, as such term is defined in Code Section 34-8-32, when the benefits required by this chapter are provided by either the temporary help contracting firm or the employee leasing company or the business using the services of either such firm or company. A temporary help contracting firm or an employee leasing company shall be deemed to be a statutory employer for the purposes of this chapter.
Illinois law states:
§ 820 ILCS 310/5. (Text of Section WITH the changes made by P.A. 89-7, which has been held unconstitutional) [Exclusive remedy against employer; third party liability]
Sec. 5. (a) There is no common law or statutory right to recover compensation or damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for or on account of any injury to health, disease, or death therefrom, other than for the compensation herein provided or for damages as provided in Section 3 of this Act [820 ILCS 310/3]. This Section shall not affect any right to compensation under the “Workers’ Compensation Act” [820 ILCS 305/1 et seq.].
No compensation is payable under this Act for any condition of physical or mental ill-being, disability, disablement, or death for which compensation is recoverable on account of accidental injury under the “Workers’ Compensation Act“.
Consequently the battle in worker’s compensation cases is whether or not someone was an employee. Several people are automatically excluded; first independent contractors are not employees. Interns are probably a revolving area of the law, and are probably moving close to being called employees. Several recent federal regulatory changes have required more education for interns and several lawsuits have resulted in interns receiving pay. If interns are paid, then they are employees covered under worker’s compensation.
Interns that have been injured and not covered by worker’s compensation are prevented from recovering because of state law, not because of unequal bargaining power.
The prohibition against lawsuits does not extend to malfunctioning equipment or any third party that might have caused the injury. An example would be an employee working on a road that is hit and injured by a car. The employee’s worker’s compensation would cover his lost wages and medical bills. The injured employee would still sue the driver of the car. However the worker’s compensation insurance company would have the right to recover any damages first before the injured employee based on its subrogation rights.
Simply put, an injury on the job provides guarantees not lawsuits. Those guarantees vary by state, but generally it means 100% of the injured employee’s medical bills are paid and a percentage of their income is replaced. If necessary additional retraining and/or long term disability if the injury is severe enough or permanent.
Employers don’t have to worry about being sued and employees do not have to worry about any defenses to their claims. Statues state that Assumption of the Risk is not a defense to a worker’s comp claim. (C.R.S. 8-41-101 (2013))
8-41-102. Liability of employer complying
An employer who has complied with the provisions of articles 40 to 47 of this title, including the provisions relating to insurance, shall not be subject to the provisions of section 8-41-101; nor shall such employer or the insurance carrier, if any, insuring the employer’s liability under said articles be subject to any other liability for the death of or personal injury to any employee, except as provided in said articles; and all causes of action, actions at law, suits in equity, proceedings, and statutory and common law rights and remedies for and on account of such death of or personal injury to any such employee and accruing to any person are abolished except as provided in said articles.
There is no litigation between employers and employees any more. Now that type of litigation resolves around whether or not someone was an employee. If you are an employer, make sure every person understands that situation and you can prove it, either in writing or some other way. You also must be able to prove that someone is not an employee according to the law. Just saying someone is not an employee is not enough.
Incorrect Articles
Waivers, Employer/Employees, and Bargaining Position
Employer/Employee Waiver Enforced Despite Unequal Bargaining Power
Waiver Protects Chimp Sanctuary from Suit by College Intern
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