Lazaro Fernandez was crushed to death at South Beach’s Gansevoort South Hotel while helping a fellow employee replace the wheels on a large metal gate. His family filed a w3rongful death case in Miami-Dade County against the Hotel and its owners, Sandy Lane Residential and Sandy Lane Master Association, as well as the manufacturer, installer, and subcontractor of the gate.
The Gansevoort is luxury South Beach hotel and condominium located at 2377 Collins Avenue. It has 334 hotel rooms and 355 condo units. At the time of the accident, the hotel was owned by Sandy Lane and managed by the New York-based Gansevoort Hotel Group. Both Gansevoort and Sandy Lane moved to dismiss the case, claiming that as the employers of Mr. Fernandez, they are immune from liability under “Florida’s Workers’ Compensation Law.”
Florida law makes it almost impossible for employees to sue a boss if and when they are accidentally hurt at work. Statute §440.11 merely allows injured or killed workers to receive limited “compensation.” There are some exceptions to this rule, but they are virtually impossible to prove–such as . . .
• when the evidence suggests that the employer intentionally caused the accident to injure or kill his or her employee,
• engaged in conduct that the employer knew–based upon prior similar accidents or on explicit warnings specifically identifying a known danger–was virtually certain to result in the employee’s injury or death and
• the employee did not know of the danger because the employer hid or lied to the employee about the danger so as to prevent the employee from using his own judgment on whether to perform the work.
The need for the injured Florida worker to be unaware of the danger is critical to these cases. According to Salvatore J. Sicuso, Esquire, a Florida Board Certified Workers’ Compensation attorney and member of the Attorney Breakfast Club in Miami, such a standard is criminal. “Requiring an employee to be unaware of the danger to sue their employer for all of his or her pain and suffering is a terrible change in the Workers’ Compensation law. Many employees are aware of broken or defective equipment they are forced to use in the workplace. The employee is left with a Hobson ‘s choice; perform the work knowing they are practically sure to get injured or killed or refuse and get fired for not performing the work.”
For an employer to take advantage of the nearly bullet-proof protection that Florida law affords from being sued by an injured employee, the person actually has to be the employer. In the Fernandez case, the trial court dismissed the employee’s claim against all three defendants without properly determining if Mr. Fernandez was actually employed by the hotel or the property owners at the time of his death.
The injured employee’s estate appealed the trial court’s dismissal to Florida’s Third District Court of Appeal. On May 3, 2013, more than four years after the fatal accident, the case was reversed back to the trial court to obtain evidence as to the identity of the actual employer. Read the Court’s opinion here.
LATEST CHANGE IN FLORIDA’S WORKER’S COMPENSATION LAW
Florida’s employers enjoy enormous legal power over the rights of those injured while on the clock. Moreover, thanks to Florida’s Legislature and Governor Rick Scott’s hard work this session in passing SB 662, an addition to the law will change the current regulations governing the reimbursement of the cost of prescription drugs for hurt employees.
The new provision applies a cap on what doctors can charge for relabeled and repackaged drugs prescribed to workers’ compensation patients. The proclaimed intent of the law is to make workers’ compensation coverage more affordable for Florida’s employers who were purported to have blamed the rising cost of coverage on the escalating pharmaceutical bills of injured employees. In reality the law serves to protect Florida’s doctors and drug companies but still allows them to charge patients far higher prices than traditional retail pharmacy can.