Sullivan v. Liberty Mut. Ins. Co., 77-1317
| Decision Date | 31 January 1979 |
| Docket Number | No. 77-1317,77-1317 |
| Citation | 367 So.2d 658 |
| Parties | Johnnie G. SULLIVAN and Virginia Sullivan, his wife, Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, a Foreign Corporation doing business in Florida, Appellee. |
| Court | Florida District Court of Appeals |
Walter H. Beckham, Jr., and Robert Orseck of Podhurst, Orseck & Parks, P. A., Miami, Ferrero, Middlebrooks & Houston, Fort Lauderdale, and Joe N. Unger of Law Offices of Joe N. Unger, Miami, for appellants.
Todd A. Cowart and James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellee.
This is an appeal from a final judgment of dismissal of an action against Liberty Mutual Insurance Company, the workmen's compensation insurer for Johnnie G. Sullivan's employer, for wrongful failure to authorize necessary medical treatment for Mr. Sullivan.
In their complaint the Sullivans alleged that Mr. Sullivan had sustained a compensable injury on March 8, 1971, for which his employer and Liberty Mutual were obligated to provide medical treatment. It was further alleged that on May 9, 1974, Liberty Mutual wrongfully withdrew its authorization for one of Sullivan's physicians to continue treatment 1 and that as a result Sullivan eventually had his foot amputated and suffered other injuries. After various amendments the trial court dismissed Sullivan's action with prejudice on the grounds that a workmen's compensation action was Sullivan's sole remedy for the misconduct alleged. 2 We agree.
1]2],2] In a variety of factual situations Florida appellate courts have consistently refused to extend liability of an employer or carrier beyond that provided under the workmen's compensation law, Chapter 440, Florida Statutes (1975). See Carroll v. Zurich Insurance Company, 286 So.2d 21 (Fla. 1st DCA 1973) and cases cited therein; Warwick v. Hudson Pulp & Paper Company, Inc., 303 So.2d 701 (Fla. 1st DCA 1974), cert. denied 314 So.2d 776. Under that law an employer, while obligated to compensate his employee for certain injuries regardless of fault, is immune from tort liability. And it has been held that a workmen's compensation insurer enjoys the same immunity. Carroll, supra; Allen v. Employers Service Corporation, 243 So.2d 454 (Fla. 2d DCA 1971), cert. denied 248 So.2d 167; Conklin v. Cohen, 262 So.2d 717 (Fla. 3d DCA 1972), aff'd in part, rev'd in part 287 So.2d 56. In Carroll, Justice Drew, sitting as an associate judge with the First District, stated for the court:
The question presented for decision here is whether a Workmen's Compensation Carrier has the immunity of its insured employer against a common law action by an employee under Section 440.11, F.S.A. as it existed prior to July 1, 1970. (Footnote omitted)
In answering this question in the affirmative Justice Drew took issue with an Illinois decision which had held that Florida law was to the contrary:
This problem has been accented here and in other jurisdictions by the decision of the Supreme Court of Illinois in the Nelson case, in which that court undertook to construe our Workmen's Compensation Act and to determine the public policy of this state in that area. There, that court reached the conclusion that " * * * we think the Florida legislature would have expressly granted tort immunity to insurers had that been its intent." With this conclusion, and the reasoning by which it was reached in the decision, we do not agree. From the beginning our courts have, so far as immunity in the sense used here is concerned, considered "employer and insurer", "employer-carrier" in the same context. The courts, the administrative agencies under the Act, and members of the bar have consistently and constantly considered them as interchangeable words so far as this question is concerned. (Id. at 22) (Footnote omitted)
,4] It has also been held that an employer's workmen's compensation liability extends to injuries and aggravations of injuries resulting from medical treatment rendered incidental to the original compensable injury. Warwick, supra. Hence, Sullivan's injuries arising from medical treatment, or lack thereof, rendered incidental to his original injury, are likewise compensable by his employer and his employer's carrier, Liberty Mutual. That relief, however, is his sole remedy against the employer and the carrier.
We agree with Sullivan that the legislature may not have set out the carrier's co-immunity with the employer in a single specific section of the present...
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