Florida Legal Update Mid-October 2014

A Statutory Employer Has No Obligation to Notify Its Carrier of an Injury and Cannot Be Estopped from Asserting Workers’ Compensation Immunity

VMS, Inc. v. Alfonso, 39 Fla. L. Weekly D2049a (Fla. 3d DCA 2014)

The Third DCA recently upheld a contractor’s right to workers’ compensation immunity even when the Plaintiff failed to seek benefits therefrom. SeeVMS, Inc. v. Alfonso, 39 Fla. L. Weekly D2049a (Fla. 3d DCA 2014). VMS, Inc. (“VMS”) contracted with the Florida Department of Transportation and was obligated to secure workers’ compensation insurance. Id. VMS then entered into a subcontract with ABC under which ABC was obligated to secure workers’ compensation insurance. Id. Mr. Alfonso, an employee of ABC, was badly burned when hot tar spilled on him and was taken to the hospital for treatment.

Neither VMS nor ABC reported Mr. Alfonso’s accident to their workers’ compensation carriers and Mr. Alfonso never asserted a claim for workers’ compensation benefits. However, after Mr. Alfonso filed suit against VMS, partial summary judgment was entered estopping VMS “from claiming workers’ compensation immunity and from asserting comparative negligence because VMS had failed to notify its workers’ compensation carrier that Alfonso had been injured.” Id.

On appeal, the Third DCA reversed the partial summary judgment. “In this case, there is no dispute that VMS secured coverage for ABC’s employees by virtue of the insurance coverage secured by its subcontractor, ABC. Having satisfied the obligation, VMS was not liable for injuries sustained by any of ABC’s or Contreras’ employees while at work.” “In short, “so long as security for compensation is maintained for all [its] statutory employees, the contractor [] obligated to secure such compensation [is] immune from suit.”” Id. (internal citations omitted). On rehearing, the Third DCA confirmed that “a contractor need only ensure that workers’ compensation insurance coverage has been secured for each worker for whom it is the statutory employer; the contractor need not ensure that actual payment of these insurance benefits be made to such employees.” Id.

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Though a cause of action exists for common law negligent transmission of a sexually transmissible disease, Human Papillomavirus (“HPV”) Requires Actual Knowledge

Kohl v. Kohl, 39 Fla. L. Weekly D2074a (Fla. 4th DCA 2014)

Florida’s Fourth DCA recently issued a decision of first impression regarding the negligent transmission of sexually transmissible diseases and, specifically, the negligent transmission of Human Papillomavirus (“HPV”). See Kohl v. Kohl, 39 Fla. L. Weekly D2074a (Fla. 4th DCA 2014). Ms. Kohl filed for dissolution of marriage and also sought to extract damages from her husband for allegedly transmitting HPV to her. According to Ms. Kohl, her husband had engaged in high-risk sexual behavior including extra-marital affairs involving multiple prostitutes. Additionally, she alleged that Mr. Kohl knew or should have known that he was exposed to HPV as his wife from a prior marriage had undergone a hysterectomy.

The trial court dismissed Ms. Kohl’s cause of action with prejudice due to her failure to track the language of section 384.24, Fla. Stat. (2013) which provides for criminal penalties for the transmission of sexually transmissible diseases. The Fourth DCA disagreed with the statutory requirement as “in a case of common law negligence based on the transmission of a sexually transmissible disease, section 384.24 does not exclusively delineate the elements of the cause of action.” Id. Additionally, “even though HPV is not one of the diseases enumerated in the statute, its transmission could still form the basis of a common law negligence claim.” Id. With this decision, a Florida appellate court has now recognized a common law cause of action for the negligent transmission of a sexually transmissible disease.

Despite the foregoing, Ms. Kohl was required to properly allege that Mr. Kohl had the requisite knowledge that he had contracted HPV. “The linchpin for imposing a legal duty to avoid negligent transmission of a sexually transmissible disease is the defendant’s knowledge that he or she harbors the disease. A duty will not lie where the defendant is unaware of the condition, since the risk by his or her sexual activity is unforeseen.” Id. The Fourth DCA upheld “the majority view incorporating either actual or constructive knowledge into the elements of the tort here at issue…” Id.

In the end, the Fourth DCA was unmoved by Ms. Kohl’s allegations of Mr. Kohl’s constructive knowledge that he had contracted HPV. First, the Court declined “to open Pandora’s box by imposing a duty in negligence for engaging in “high risk” sexual behavior.” Second, pertaining to his knowledge that his previous wife had undergone a hysterectomy, Mr. Kohl’s ““knowledge” in this case cannot be predicated on remote chance and guesswork.” In conclusion, in cases involving the transmission of HPV, which the Court found to be “uniquely prevalent and often symptomatic”, the Fourth DCA found that a requirement of actual knowledge is required to establish a legal duty. Id.

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