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Monthly Archives: September 2016

16SEP 2016

Most, if not all, commercial general liability policies contain a workers’ compensation exclusion, which have been widely interpreted to exclude claims made by employees directly against their employers.[i]  However, that exclusion can be avoided in certain circumstances where a party that was liable for the employee’s injuries seeks indemnity back against the employer, as outlined in a recent South Florida case.[ii]

In this matter, a company was retained to perform landscape work on a construction project.  While on the project, a landscaping employee was injured when he slipped and fell on a slippery substance.  As a result, he filed a lawsuit against the owner of the property and the general contractor for the construction project.  In response, the owner and general contractor filed claims against the landscaping employer seeking indemnification for the injuries to the employee.  Thus, in a roundabout way, the employee was ultimately seeking to recover from his employer for an injury that he suffered while in the course and scope of his employment, in contradiction to the workers’ compensation exclusion.

Accordingly, the insurance carrier for the landscaping company denied coverage for the indemnification claim and a declaratory action ensued.  After considering cross-motions for summary judgment, the Court found that there was a duty to defend despite the existence of the workers’ compensation exclusion.  Specifically, the Court found that the exclusion, and the cases interpreting the exclusion, only excluded claims where employees were directly suing their employers.  The Court found that the exclusion did not apply to an indemnity claim brought by a third party, even though it arose directly from the employee’s jobsite injuries.

Note that the Court’s reasoning was wholly dependent upon the language of the specific exclusion.  Specifically, the Court noted that the workers’ compensation exclusion did not preclude coverage for any claim brought by any party “arising out of” or “related to” any “bodily injury” inflicted upon an insured’s “employee,” including indemnity and contribution claims.  The Court reached this conclusion despite the fact that the same language was used in another exclusion contained in the same policy.  Accordingly, the Court was not making a public policy declaration that this type of indemnity claim could never be excluded, and provided a potential model for how the exclusion could be drafted to avoid coverage.

However, as noted in most cases interpreting exclusions, “[p]olicy provisions that tend to limit or avoid liability are interpreted liberally in favor of the insured and strictly against the drafter who prepared the policy, and exclusions to coverage are construed even more strictly against the insurer than coverage clauses”.[iii]

[i] See, e.g., Pac. Employers Ins. Co. v. Wausau Bus. Ins. Co., 508 F. Supp. 2d 1167 (M.D. Fla. 2007); Scottsdale Ins. Co. v. GFM Operations, Inc., 789 F. Supp. 2d 1278 (S.D. Fla. 2011) (“Worker’s Compensation and Similar Laws” exclusion analyzed in the context of a claim brought directly by an employee against insured employer); Sinni v. Scottsdale Ins. Co., 676 F. Supp. 2d 1319 (M.D. Fla. 2009) (exclusion applied in case brought directly by employee who was provided “significant workers’ compensation benefits for the very injuries for which she subsequently sought relief in the underlying tort action”); Oppenheim v. Reliance Ins. Co.,804 F. Supp. 305 (M.D. Fla. 1991) (worker’s compensation exclusion applied to a claim brought directly by an employee of insured who “was entitled to Workers’ Compensation benefits and received them”); Indian Harbor Ins. Co. v. Williams, 998 So. 2d 677, 679 (Fla. 4th DCA 2009) (workers’ compensation exclusion applied to negligence claim brought directly by employee against employer/insured which “violated his statutory duty to maintain workers’ compensation insurance for his employees”); Florida Ins. Guar. Ass’n, Inc. v. Revoredo, 698 So. 2d 890 (Fla. 3d DCA 1997) (exclusion applied because obligation to decedent who was “deemed to be employed” by insured “is under workers’ compensation law”).

[ii] Order available from Cole, Scott & Kissane upon request.

[iii] See Flores v. Allstate Ins. Co., 819 So.2d 740 (Fla. 2002).

04SEP 2016

Cole, Scott & Kissane, P.A. (“CSK”) is pleased to announce that Attorney Clay Whittaker has been recognized by the Florida Bar as a Board Certified Specialist in Construction Law. According to the Florida Bar, Board Certification is the highest level of evaluation of competency and experience within an area of law, as well as professionalism and ethics in practice. Board Certified Specialists are required to possess a minimum level of relevant experience and undergo a rigorous examination process to demonstrate their competency in specific areas of the law.

Areas of Florida Construction Law Practice

To receive his designation as a Florida Board Certified Specialist in Construction Law, Mr. Whittaker was required to demonstrate to the Florida Bar that he possesses expert competency in all areas of construction law, including without limitation, the following:

Florida Construction Lien Law

Private Construction Contracts (Contract negotiation, preparation, bidding, award and administration)

Public Construction Contracts (bidding, hearings, administration, protests and appeals)

Design Professional Liability

Damages, Defenses and Theories of Recovery

Chapter 558, Florida Statutes

Collection and Judgment Enforcement Procedures

Prompt Pay Procedures (public and private)

Licensing and Regulation of Contractors and Professionals – Chapter 489, Part I and Part II, Florida Statutes

Construction Lending

Suretyship, including, but not limited to, Payment and Performance Bonds, Common Law Bonds, Statutory Bonds, Section 255.05, Florida Statutes and the Federal Miller Act, 40 U.S.C s. 3131-31342 Revised 12/3/2012

Insurance

Chapter 718, Florida Statutes pertaining to standing, causes of action, warranties and remedies and defenses relative to design and construction defects and deficiencies

Chapter 720, Florida Statutes pertaining to standing, causes of action, warranties and remedies and defenses relative to design and construction defects and deficiencies

AIA form documents: A101 (2007), A102 (2007), A201 (2007), A312 Bonds (2010), A133 (2009), A121CMc (2003), and B101(2007)

Alternative Construction Dispute Resolution and Remedies

Ethics

Contact A Florida Construction Law Legal Expert

Only a very limited number of Florida attorneys – less than 0.5% of all licensed Florida attorneys – are able to claim the distinguished status as Board Certified Specialists in Construction Law. CSK is very fortunate to have such highly-credentialed and experienced practitioners. Mr. Whittaker is the sixth CSK attorney to achieve distinction as an expert in Construction Law, and he is one of only seven Board Certified Construction Attorneys in Pensacola, Florida. Mr. Whittaker joins his colleagues, George R. Truitt, Jr., David Salazar, Kevin C. Schumacher, David Harrigan, and Steven P. Befera, on the core team of CSK attorneys who are Board Certified in Construction Law. Mr. Whittaker may be contacted through CSK’s Pensacola, Florida, office.