Gerth v. Wilson, 2D99-2817.

• Decision Date: 26 May 2000
• Docket Number: No. 2D99-2817.,2D99-2817.
• Citation: 774 So.2d 5
• Parties: Rosalind GERTH, as Personal Representative of the Estate of Kenneth F. Gerth, Deceased, Appellant, v. Nelson J. WILSON, Appellee.
• Court: Florida District Court of Appeals

774 So.2d 5

Rosalind GERTH, as Personal Representative of the Estate of Kenneth F. Gerth, Deceased, Appellant, v. Nelson J. WILSON, Appellee.

No. 2D99-2817.

District Court of Appeal of Florida, Second District.

May 26, 2000.

As Modified on Denial of Rehearing and Rehearing October 11, 2000.

Vanda Y. Bayliss, Sarasota, and Bertram Dannheisser, III, Sarasota, for Appellant.

Mark A. Boyle of Fink & Boyle, P.A., Fort Myers, for Appellee.

As Modified on Denial of Rehearing and Rehearing En Banc October 11, 2000.

BLUE, Judge.

Rosalind Gerth, as personal representative of her deceased husband's estate, appeals the final summary judgment that found the husband's employer was entitled to workers' compensation immunity in the estate's wrongful death action. The limited issue before this court poses the following question: Does a federal Occupational Safety and Health Act (OSHA) violation, for which an employer may be imprisoned for six months, abrogate workers' compensation immunity on the same basis as injury resulting from criminal conduct for which the penalty under Florida law is in excess of sixty days? We reverse the summary judgment but conclude that this issue is one of great public importance and thus certify the question to the Florida Supreme Court.

Florida's Workers' Compensation Law, codified in chapter 440, Florida Statutes (1997), protects workers and compensates them for injuries occurring in the workplace, without examination of fault in the causation of injury. At the same time, it protects employers from liability beyond the benefits of workers' compensation for injuries except in certain limited situations. The courts recognize an exception for intentional torts where the employer has either "exhibit[ed] a deliberate intent to injure or engage[d] in conduct which is substantially certain to result in injury or death." Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882, 883 (Fla.1986), affirmed in part and receded from in part by Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000) (reaffirming existence of an intentional tort exception to workers' compensation immunity, adopting objective standard to evaluate employer's conduct, and receding from Fisher to the extent it suggested that the substantial certainty test required a showing of virtual certainty). The Workers' Compensation Law itself contains an exception where the employer has violated a law, whether or not a violation was charged, for which the maximum penalty that may be imposed exceeds sixty days' imprisonment as set forth in section 775.082, Florida Statutes (1997). See § 440.11(1).

For purposes of the summary judgment, the employer, Nelson J. Wilson, stipulated that the decedent's fatal fall down an elevator shaft resulted from conduct on Wilson's part that constituted an OSHA violation punishable by up to six months' imprisonment. Wilson was subjected to the possibility of incarceration because the decedent's fall was the second accident in this improperly guarded open elevator shaft, combined with the fact that the injuries resulted in death.

Wilson contends that the negation of workers' compensation immunity for violations of law contained in section 440.11(1) applies only to violations of Florida law. Wilson further argues that OSHA regulations provide that they should not be construed to affect workers' compensation law. See 29 U.S.C. § 653(b)(4). Because there are...