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Florida First DCA rules that defendants in personal injury lawsuit were not estopped from claiming workers’ compensation immunity despite taking position in workers’ compensation proceeding that plaintiff’s claim was not covered by workers’ compensation

On January 22, 2020, in McNair v. Dorsey, et al, No. 1D18-698, the Florida First DCA ruled that the defendants in personal injury lawsuit were not estopped from claiming workers’ compensation immunity. One of the defendants employed the plaintiff in a tree removal business, while the other defendant was a coworker who was working with the plaintiff when the latter was injured while carrying a tree branch. When the plaintiff filed a petition for the workers’ compensation benefits under Florida law, the employer took the alternative positions that the accident was not compensable under the workers’ compensation law, no accident occurred, and that the accident did not occur within the course and scope of the plaintiff’s employment. After the plaintiff voluntarily dismissed the workers’ compensation petition and filed a personal injury lawsuit, the defendant employer moved for summary judgment on the basis of workers’ compensation immunity. The trial court granted the summary judgment over the plaintiff’s objection that the employer’s position in the workers’ compensation case estopped him from claiming workers’ compensation immunity in the personal injury case. The First DCA observed that an employer is estopped from asserting workers’ compensation immunity when the following occurs: 1) a representation of a material fact that is contrary to a later asserted position; 2) reliance on that representation; and 3) a change in position detrimental to the party claiming estoppel that is caused by the reliance on said representation, citing Specialty Emp. Leasing v. Davis, 737 So. 2d 1170, 1172 (Fla. 1st DCA 1999) (quoting Dep’t of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1981)). The First DCA also noted that Florida courts have held that “an employer may be equitably estopped from raising a workers’ compensation exclusivity defense if the employer denies the employee’s claim by asserting that the injury did not occur in the course and scope of his or her employment,” quoting Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545, 547 (Fla. 3d DCA 2010) (citing Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st DCA 2009)). The First DCA acknowledged that the Fifth DCA ruled that a defendant was estopped from raising immunity as a defense when she claimed in a previous workers’ compensation proceeding that the accident at issue occurred after the plaintiff had left the worksite, see Byerley v. Citrus Publ’g, 725 So. 2d 1230 (Fla. 5th DCA 1999), but distinguished Byerly because here the defendant had denied in the workers’ compensation proceeding that the accident had occurred at all, not just that it did not occur at the worksite. The Court stated: “[p]ut another way, if the employee in Byerley were to prevail in a tort suit, she would have proven an accident that was outside the scope of employment. In contrast, if McNair were to prevail in this suit, he would have proven an accident that was inside the scope of employment. This fact demonstrates why the employer’s assertion of worker’s compensation immunity was improper in Byerley, but not improper here.”