Who can I sue if I'm hurt on a construction site in Florida?

Who can you sue after a construction accident in Florida?

In Florida, you can accept workers' comp and also sue a third party whose negligence or wrongful act caused your injury, such as an outside driver, the maker of a defective machine or, in some cases, another company on the site. If a worker is killed, these paths can stay open to the family. You generally cannot bring a construction accident lawsuit against your own employer, because workers' compensation is the employer's exclusive liability, except in situations the law lists.

Workers' compensation, or comp, is the job injury coverage Florida law requires every construction contractor and subcontractor to carry for its employees. A third party is a person or company other than you and your employer. Negligence means failing to use reasonable care.

The exceptions, and the rules for coworkers and supervisors:

• If your employer failed to secure comp as required, you may choose to claim comp or to sue your employer.
• An intentional tort (a deliberate wrong) by your employer that causes your injury is an exception, under a test the statute sets.
• A coworker can share your employer's protection, with exceptions such as gross negligence, and supervisors and managers can have their own protection.

The comp law also protects another subcontractor on the same project, but only if comp insurance was secured for its workers and its own gross negligence was not the major contributing cause of your injury. For more on a construction site injury third party claim, see work injury lawyers in Melbourne.

What does Florida law say about job site injury lawsuits?

Your employer's comp liability is exclusive

Section 440.11, Florida Statutes, says the employer's liability "shall be exclusive and in place of all other liability" to the injured employee and family, "except as follows," and then lists the exceptions.

You can take comp and sue a third party

Section 440.39, Florida Statutes, says a worker hurt on the job "by the negligence or wrongful act of a third-party tortfeasor" may "accept compensation benefits" and "at the same time" sue that tortfeasor. A tortfeasor is the person or company whose wrongful act caused the harm.

Construction employers must carry comp

Under section 440.10(1)(a), Florida Statutes, any contractor or subcontractor doing public or private construction in Florida "shall secure and maintain compensation for his or her employees." Section 440.02, Florida Statutes, applies this to construction employers with "one or more employees," while outside construction the general rule is four or more.

General contractors and subcontractors' workers

Section 440.10(1)(b) says that when a contractor "sublets any part" of its contract work, all the workers on that work are treated as employed in one business, and the contractor must pay and secure comp for all of them, "except to employees of a subcontractor who has secured such payment."

Other subcontractors on the same project

Section 440.10(1)(e) protects a subcontractor working "in conjunction with a contractor on the same project" from lawsuits by the injured workers of the contractor or of another subcontractor, "provided that" both of these are true:

• It "has secured workers' compensation insurance for its employees," or the contractor secured that insurance on its behalf.
• "The subcontractor's own gross negligence was not the major contributing cause of the injury."

Sharing the blame

Section 768.81, Florida Statutes, says that in a negligence case the court enters judgment against each liable party "on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability." In plain words, each company is generally responsible for its own share of fault, though a company can also be held responsible for the carelessness of someone working for it, so every company on the site matters. For how your own share of fault can affect a claim, see How Florida's Comparative Negligence Law Affects Your Settlement.

Which companies on a construction site can you sue?

If you were injured on a job site, who may be liable often turns on each company's role and the facts of the job. These are general examples, not predictions.

The general contractor

Whether the rules above protect a given general contractor from your lawsuit depends on how the job was contracted and covered, and judges decide how the law applies to each job.

Another subcontractor

In a subcontractor injury lawsuit, you may be able to sue another subcontractor on the same project if comp insurance was not secured for its workers or its own gross negligence was the major contributing cause of your injury, because the comp law's protection then does not apply.

A coworker, supervisor or manager

A coworker has the same protection as your employer when acting in furtherance of (working to advance) the employer's business and you are entitled to comp benefits. That protection does not apply to a coworker who acted toward you with willful and wanton disregard, unprovoked physical aggression, or gross negligence that caused your injury, or when you were both acting in furtherance of the employer's business but assigned mainly to unrelated work. Supervisors and managers acting in a managerial or policymaking role have their own protection under the same section, with a condition the statute sets.

An architect or engineer

Under section 440.09(6), Florida Statutes, an architect, engineer or other "construction design professional" on a project is not liable for injuries from "the employer's failure to comply with safety standards" when comp covers the injury, unless responsibility for safety practices was "specifically assumed by contracts." This protection "does not apply to the negligent preparation of design plans or specifications."

Outside companies and people

You can accept comp and also sue a third party whose negligence or wrongful act caused your injury, such as an outside delivery driver or the maker of a defective tool or machine. If a worker is killed, the same two paths stay open to the family: the worker's dependents may accept comp benefits and, at the same time, the personal representative of the worker's estate may sue that third party. To learn who files a death case, see Who can file a wrongful death lawsuit in Florida? To compare the two claims, see Can I sue someone other than my employer for a work injury? For road crashes, see What if I'm hurt in a car accident while working in Florida? A lawyer can also look at the property owner's role. For what a claim may be worth, see How much is my personal injury case worth?

If you work as an independent contractor

Florida's comp law counts an independent contractor working or performing services in the construction industry as an "employee," with some exceptions the statute lists.

What else do people ask about construction site injuries?

Can I sue my employer because the job site was unsafe?

Generally not, because comp is your employer's exclusive liability, but the law lists exceptions, and a lawyer can tell you whether one may fit your situation. One exception is an intentional tort by your employer that causes your injury. The employer's actions count as an intentional tort, and not an accident, only when you prove, by "clear and convincing evidence," either of these:

• The employer deliberately intended to injure you.
• The employer engaged in conduct it knew, based on prior similar accidents or explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to you, and you were not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented it so as to prevent you from making an informed judgment about whether to do the work.

What if a staffing agency sent me to the job site?

When a business uses workers from a help supply (staffing or temp) company, that business and its employees get the same immunity (protection from lawsuits) as an employer while those workers are acting in furtherance of its work, and you are treated as its borrowed employee. A third party outside that relationship whose negligence or wrongful act caused your injury can still be sued while you accept comp.

Do I have to pay back workers' comp if I win?

You may have to repay some of it. Your employer or its comp insurer may file a notice of payment in your third-party lawsuit, which is a lien (a legal claim) on any judgment or settlement for its share of comp and medical benefits paid or to be paid, less its share of court costs and your reasonable attorney's fees. After that deduction, it recovers 100 percent of what it has paid and will pay, unless you show the court your recovery was less than the full value of your damages; then it recovers only the percentage that your net recovery is of the full value. The trial judge decides the amount.

What should you do after a construction site injury?

• Get medical care right away.
• Tell your employer about the injury within 30 days after it happens or first shows up, ideally in writing. Missing that deadline bars a comp petition unless an exception in section 440.185, Florida Statutes, applies, such as your employer already knowing.
• Under section 440.19, Florida Statutes, a comp petition is barred unless you gave that notice and filed the petition within 2 years after you knew or should have known the injury arose out of work, except as the statute otherwise provides.
• Write down every company on the site that day (the general contractor, each subcontractor, equipment rental and delivery companies), using names on trucks, signs, hard hats and the permit board.
• Photograph the scene and any equipment involved, ask that the equipment be kept as it is, and get witnesses' names and numbers.
• Keep your comp papers, medical records and pay records.
• Don't wait to pursue the third party. If you don't sue within 1 year after the cause of action accrued (when your right to sue arose), your employer (if self-insured) or the comp insurer may, after giving 30 days' notice to you and your lawyer (if you have one), sue the third party itself.

Your deadline to file a lawsuit

Under section 95.11, Florida Statutes, a lawsuit for an injury caused by negligence must be filed within two years. That two-year rule applies only to claims that arose after the 2023 change took effect on March 24, 2023, and under section 768.28, Florida Statutes, a negligence lawsuit against a Florida state or local government agency must be filed within 4 years after the claim arises, except medical malpractice and wrongful death claims, which follow the deadlines in section 95.11(5). Before you can sue a government agency, a written claim generally must be presented within 3 years after the claim arises (2 years for wrongful death) and then denied, or left without a final decision for the time the law allows. Older claims follow different rules, explained in How long do I have to file a personal injury claim in Florida?

Talk to a Melbourne lawyer about a construction injury

Douglas R. Beam, P.A. is a law firm in Melbourne, Florida. We handle claims against a third party who caused a work injury, when that party is someone other than your employer. If you were hurt on a construction site, you can talk with us in a free consultation.

Call us at (321) 723-6591, or send us a message through our website. Our office is at 25 West New Haven Avenue, Suite C, Melbourne, FL 32901.

Sources

• Section 440.11, Florida Statutes
• Section 440.39, Florida Statutes
• Section 440.10, Florida Statutes
• Section 440.02, Florida Statutes
• Section 440.09, Florida Statutes
• Section 440.185, Florida Statutes
• Section 440.19, Florida Statutes
• Section 768.81, Florida Statutes
• Section 95.11, Florida Statutes
• Section 768.28, Florida Statutes
• Chapter 2023-15, Laws of Florida