Eller v. Shova

Decision Date09 December 1993
Docket NumberNo. 80776,80776
Parties9 Indiv.Empl.Rts.Cas. (BNA) 355, 18 Fla. L. Weekly S626 Karl ELLER, et al., Appellants, v. Randy SHOVA, etc., Appellee.
CourtFlorida Supreme Court

William M. Schneikart and Randee K. Carson of Hampp, Schneikart & James, P.A., St. Petersburg, for appellants.

James A. Sheehan, St. Petersburg, for appellee.

David W. Henry of McDonough, O'Neal & O'Dell, Orlando, amicus curiae for the Florida Defense Lawyers Ass'n.

Arthur J. England, Jr. and Charles M. Auslander of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, amicus curiae for the Florida Food and Fuel Retailers.

OVERTON, Justice.

We have for review Shova v. Eller, 606 So.2d 400 (Fla. 2d DCA 1992), in which the Second District Court of Appeal found the 1988 amendment to section 440.11(1), Florida Statutes (1989), which is a part of the Workers' Compensation Law, to be unconstitutional. The amendment raised the degree of negligence necessary to maintain a civil tort action against policymaking employees from gross negligence to culpable negligence. We have jurisdiction pursuant to article V, section 3(b)(1), of the Florida Constitution. For the reasons expressed, we find the amendment to be constitutional and quash the decision of the district court.

The record in this case reflects the following facts. Felicia Shova was murdered during a robbery of a Circle K convenience store where she was employed as a supervisor. After Felicia Shova was murdered, her husband, Randy Shova, individually, and as personal representative of her estate, filed a complaint for damages alleging gross negligence against the following Circle K employees: Karl Eller, chair of Circle K's board of directors; Robert Dearth, Circle K's president; and Richard Yarnell, regional manager of Circle K's West Central Florida stores. The complaint 1 alleged negligence against the defendants on the basis that they knew the store was located in a high crime area and had been the subject of numerous robberies, but, despite that knowledge, decided not to equip the store with adequate security equipment and an adequate number of employees. Further, the complaint alleged that that decision was made with the knowledge that such a decision would eventually result in serious bodily injury to other employees. Finally, the complaint alleged that the decision not to add security equipment and additional employees amounted to an infliction, by the defendants, of actual personal injury to Felicia.

The trial judge dismissed the complaint with prejudice, finding that workers' compensation provided the exclusive remedy to Shova's estate because Shova had failed to allege that the defendants had committed an act for which they could be imprisoned for more than sixty days as required under section 440.11(1).

On appeal, the Second District found that the 1988 amendment to section 440.11(1) was unconstitutional and violated the access to courts provision contained in article I, section 21, of the Florida Constitution. 2 In reaching that decision, the district court noted that the amendment raised the degree of negligence necessary to maintain a civil tort action against a coemployee in a supervisory/managerial position from gross negligence to culpable negligence. After finding that culpable negligence is criminal negligence equivalent to an intentional act, the district court determined that the 1988 amendment abolished all civil causes of action in negligence against managerial/policymaking-type employees without providing a reasonable alternative. In so ruling, the district court rejected the defendants' argument that the workers' compensation system was a reasonable alternative. Judge Altenbernd dissented on the grounds that the cause of action in this case does not involve a preexisting right of redress and that, even if it did, workers' compensation provides a reasonable alternative to any preexisting right of redress.

Based on the district court's finding that the 1988 amendment to section 440.011(1) was unconstitutional, mandatory jurisdiction vested with this Court.

To properly evaluate the issues in this case, we first set forth the history of immunity under the Workers' Compensation Law (the Act). Under the Act, workers' compensation is the exclusive remedy available to an injured employee as to any negligence on the part of that employee's employer. Sec. 440.11(1). When employers properly secure workers' compensation coverage for their employees, employers are provided with immunity from suit by their employees so long as the employer has not engaged in any intentional act designed to result in or that is substantially certain to result in injury or death to the employee. Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882 (Fla.1986); Lawton v. Alpine Engineered Prods., Inc., 498 So.2d 879 (Fla.1986).

The issue of whether the workers' compensation immunity afforded to employers also extends to an injured employee's coemployees was first addressed by this Court in Frantz v. McBee Co., 77 So.2d 796 (Fla.1955). In that case, Frantz, an employee of McBee, was allegedly killed during the course of his employment through the negligence of another McBee employee. In ruling on whether the coemployee was liable to Frantz as a coemployee, we noted that, at common law, coemployees owed each other the duty of ordinary care in performing their duties and could be held liable for the failure to exercise ordinary care when such failure resulted in injury to a fellow employee. Additionally, we stated that, in the absence of a legislative mandate to the contrary, fellow employees are to be treated as third parties within the meaning of the Workers' Compensation Law. Because the Law, at that time, expressly reserved to an injured employee a concurrent remedy against a third party tortfeasor, we held that the immunity afforded employers under the Law did not extend to coemployees.

In 1978, the legislature, through an amendment to section 440.11(1), did, in fact, limit the liability of employees who injure fellow employees through acts of simple negligence. Acts of gross negligence, however, remained actionable. The constitutionality of that limitation of liability was subsequently challenged in Iglesia v. Floran, 394 So.2d 994 (Fla.1981).

In Iglesia, the plaintiff asserted that the limitation of liability as to coemployees violated the standard we set forth in Kluger v. White, 281 So.2d 1 (Fla.1973), and, as such, denied the plaintiff access to courts as provided in article I, section 21, of the Florida Constitution. In Kluger, we held that

where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla.Stat. Sec. 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

281 So.2d at 4. In analyzing that standard in Kluger, we stated that a statute that merely changed the degree of negligence necessary to maintain a tort action did not abolish a right to redress for an injury. See McMillan v. Nelson, 149 Fla. 334, 5 So.2d 867 (1942). Similarly, because the limitation of liability contained in the 1978 amendment to section 440.11(1) merely limited the liability of coemployees as to simple negligence and still provided a cause of action for gross negligence, we determined that the limitation merely changed the degree of negligence necessary to sue and did not unconstitutionally abolish a cause of action.

Thereafter, in Streeter v. Sullivan, 509 So.2d 268 (Fla.1987), we held that the term "coemployee" as used in section 440.11(1) included vice-principal-type coemployees. Under our interpretation, corporate officers, executives, and supervisors could be sued as coemployees for acts of gross negligence. We stated in Streeter that we believed section 440.11(1) "to be an unambiguous statement of the legislature's desire to impose liability on all employees who act with gross negligence with respect to their fellow employees, regardless of the grossly negligent employee's corporate status." 509 So.2d at 270.

As a result of our decision in Streeter, in 1988 the legislature again amended section 440.11(1). As amended, section 440.11(1) provides as follows:

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by negligence of a fellow servant, that the employee assumed the risk of the employment, or that the injury was due to the comparative negligence of the employee. The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer's business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee...

To continue reading

Request your trial
76 cases
  • Kasischke v. State
    • United States
    • Florida Supreme Court
    • July 10, 2008
    ...So.2d 526, 530 (Fla. 1997); M.P. v. State, 682 So.2d 79, 82 (Fla. 1996); Via v. Putnam, 656 So.2d 460, 463 (Fla. 1995); Eller v. Shova, 630 So.2d 537, 541-42 (Fla. 1993); Fla. League of Cities v. Smith, 607 So.2d 397, 398-99 (Fla. 1992); Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So.2d 730......
  • Aguilera v. Inservices, Inc.
    • United States
    • Florida Supreme Court
    • June 16, 2005
    ...injuries in exchange for strict liability and the rapid recovery of benefits. Turner, 754 So.2d at 686; see also Eller v. Shova, 630 So.2d 537, 542 (Fla.1993); Fitzgerald v. South Broward Hosp. Dist., 840 So.2d 460, 462 (Fla. 4th DCA 2003); John v. GDG Servs., Inc., 424 So.2d 114, 116 (Fla.......
  • Mitchell v. Moore
    • United States
    • Florida Supreme Court
    • April 12, 2001
    ...had been provided as an alternative to the preexisting right, there was no access to courts violation. For example, in Eller v. Shova, 630 So.2d 537 (Fla.1993), this Court found that the system of workers' compensation that provided no-fault recovery was a reasonable alternative to the righ......
  • SINNI v. Scottsdale Ins. Co.
    • United States
    • U.S. District Court — Middle District of Florida
    • January 4, 2010
    ...an employee "shall be exclusive and in place of all other liability, including vicarious liability...."); see also, e.g., Eller v. Shova, 630 So.2d 537, 539 (Fla.1993); Seaboard Coast Line R.R. Co. v. Smith, 359 So.2d 427, 429 (Fla.1978). Under the statute, an employer is obligated to compe......
  • Request a trial to view additional results
1 books & journal articles
  • Medical Malpractice as Workers' Comp: Overcoming State Constitutional Barriers to Tort Reform
    • United States
    • Emory University School of Law Emory Law Journal No. 67-5, 2018
    • Invalid date
    ...and social activities, personal comfort, travelling employees, and the going and coming rule." Id. at 1172 n.4.198. Id. at 1171-72.199. 630 So. 2d 537 (Fla. 1993).200. See id. at 538, 542.201. Id. at 542 (emphasis added) (quoting Shova v. Eller, 606 So. 2d 400, 408 (Fla. Dist. Ct. App. 1993......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT