Construction Case Law Update - December, 2014

by Carlton Fields


  • Employer Liability Policies & Worker’s Compensation – Although decedent-employee’s estate had standing as a judgment creditor to sue the tortfeasor-employer’s liability insurer for breach of contract to satisfy a wrongful death judgment, the employer liability policy’s workers’ compensation exclusion precluded coverage because the complaint alleged the employer’s negligence caused the employee’s death, which as a matter of law left Florida Worker’s Compensation Law as the estate’s exclusive remedy. Furthermore, while the wrongful death action was pending, the parties entered  into a workers’ compensation settlement agreement releasing the employer and insurer of all liability in exchange for the estate’s election of  consideration (here, a lump-sum payment) as the sole remedy for the employee’s death, pursuant to Fla. Sta. §440.20(11)(c). Accordingly, the Florida Supreme Court held that the estate could not recover under the employer’s liability insurance policy despite the estate’s judgment against the employer. Leticia Morales, et al., v. Zenith Insurance Company, Case No. SC13-696 (Fla. Dec. 4, 2014).
  • Sinkhole Claims; Insurance; Rights of Appraisal – Insured homeowners did not waive appraisal right for sinkhole damage where homeowners demanded appraisal within 30 days of Florida Insurance Guaranty Association’s (“FIGA”) acceptance of coverage for the homeowner’s loss and, in the interim, homeowners took no action in the pending litigation between homeowner and FIGA, who had been substituted for homeowner’s insolvent insurer that denied homeowner’s claims. Although insurers are generally not required to seek appraisal prior to litigation, the Fifth District saw no reason, absent contrary contractual language, why the insured should not have the same flexibility when coverage is denied. Accordingly, the court granted the motion for rehearing, withdrew its prior opinion (39 Fla. L. Weekly D2197a), and  affirmed the trial court’s order insofar as it compelled appraisal. Florida Insurance Guaranty Ass’n, etc. v. Kenneth Sill and Kathry Sill, 39 Fla. L. Weekly D2575a (Fla. 5th DCA Dec. 12, 2014).
  • Worker’s Compensation, Medical Benefits, and Self-help Provision of § 440.13(2)(c) – Under the “self-help” provision in Fla. Stat. § 440.13(2)(c), worker’s compensation  Employer/Carrier was not required to reimburse costs to Claimant for renal mass/cancer surgery (potentially unrelated to compensable back injury) where “Claimant did not specifically [give notice or] request that the E/C provide the treatment and care recommended by the authorized [doctor] and provided by the hospital,” and instead only sought compensation after the surgery. Sears Outlet and Sedgwick CMS v. James Brown, Case No. 1D14-2289, 39 Fla. L. Weekly D2555c (Fla. 1st DCA Dec. 9, 2014) (not final until time expires to file motion for rehearing and disposition thereof if filed).


  • Motion to Dismiss; Indemnity Clauses under Fla. Stat. § 725.06; Common Law Indemnity – Fourth party’s motion to dismiss was inappropriate for determining whether Fla. Stat. § 725.06 applied to and voided an indemnity agreement, contained in a contract to repair and/or construct a bottling plant’s conveyor belt, for a lack of monetary limitation bearing reasonable relation to the contract because such a determination requires contract interpretation, which is an analysis better suited for summary judgment. Furthermore, because the court’s review was limited to the four corners of the fourth party complaint, the Middle District of Florida also denied the fourth party’s motion to dismiss the third party’s common law indemnity claim despite third party’s position in prior pleadings that underlying defendant was responsible for underlying plaintiff’s injuries, which was inconsistent with a claim of common law indemnity against the fourth party. Hess v. Coca-Cola Refreshments USA, Inc., Case No. 8:13-cv-3136-T-33EAJ, 2014 WL 6909439 (M.D. Fla. Dec. 9, 2014).


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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