Workers’ Compensation Immunity Issues in Construction Claims Under Chapter 440

Posted in Legal Alerts on October 25, 2023

Most Florida employers are required to compensate employees who are accidentally injured while performing their job responsibilities. Employers can either maintain insurance to cover the exposure or provide other acceptable proof of financial responsibility.

In exchange for strict liability for most employee injuries, employers are generally exempt from personal injury and other types of liability under Florida’s workers’ compensation immunity laws. However, immunity is not absolute in all situations.

When it comes to employers in the construction industry, specific provisions within the workers’ compensation laws detail the circumstances under which workers’ compensation immunity will not protect an employer from civil liability.

Construction Work and Workers’ Compensation in Florida

Florida’s workers’ compensation laws are found in Chapter 440 of the Florida statutes. Section 440.10 requires any contractor or subcontractor involved in public or private construction to secure and maintain the ability to compensate injured employees. 

The definition of ‘employee’ under 440.02(18)(c) includes: 

  • A sole proprietor who engages in the construction industry
  • An independent contractor performing services in the construction industry
  • All subcontractors paid by construction contractors unless the subcontractors have separate compensation coverage or have elected an exemption under the statute 

Construction contractors must require any subcontractors they hire to provide proof of compliance with workers’ compensation laws, but contractors must also be prepared to cover the risk of injury for subcontract workers. 

The statute places the ultimate responsibility for providing workers’ compensation insurance on a construction contractor. A contractor who does not provide coverage for an injured employee is not immune from a civil lawsuit and liability for all statutory damages. 

Furthermore, if an employee does bring a lawsuit, an employer is prohibited from using any of the following defenses: 

  • The injury was caused by another employee
  • The employee was aware of the risk and chose to continue working
  • The employee was the cause of their injury

Immunity from Employee Lawsuits 

Section 440.11 generally limits the liability of employers who comply with workers’ compensation laws by making workers’ compensation benefits the exclusive remedy for injured employees or their representatives. The immunity also extends to fellow employees who are acting in furtherance of an employer’s business. 

Because all subcontract personnel hired by a construction contractor are entitled to compensation benefits from the contractor, all subcontractors in the same vertical relationship are also immune from lawsuits. 

The immunity provided by Florida law applies when employee injuries are truly accidental. When the cause of an employee’s injuries could be expected or is more deliberate, immunity may not protect an employer from other types of liability.

When Workers’ Compensation Immunity Issues Can Arise 

Workers’ compensation immunity cannot be easily set aside. The only circumstances under which immunity may be challenged occur when the conduct of an employer can be shown to be something more menacing than ordinary carelessness or neglect. 

For employers in the construction industry, two different standards apply to contractors and subcontractors.


If an employee’s injury or death was caused by the intentional conduct of the contractor, workers’ compensation immunity will not apply, and an employee may file a lawsuit against the employer. 

The Florida Legislature has made it clear that only extreme conduct by an employer will reintroduce civil liability for employee injuries. The actions of an employer will only be deemed intentional if an employee can prove either of the following is true: 

  • There was a deliberate intention to injure the employee, or
  • Based on prior occurrences, the employer knew with virtual certainty the employee would be injured or killed and concealed the danger from the employee 

In order to rescind workers’ compensation immunity, evidence in support of intentional conduct by an employer must be clear and convincing. Florida jury instructions (Section 411.3) describe clear and convincing evidence as proof that is ‘precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction without hesitation about the matter in issue.’ 

When faced with the issue of workers’ compensation immunity, Florida courts have discussed how difficult it is for employees to overcome employer immunity. To meet the virtual certainty requirement, an employee would have to show an employer knew an accident occurred nearly every time there has been exposure to the danger.


Under section 440.10(e), a subcontractor working under a contractor is not liable for the payment of compensation to the employees of the contractor or another subcontractor working for the contractor and is protected by workers’ compensation immunity so long as: 

  • The subcontractor or contractor has secured workers’ compensation insurance, and
  • The subcontractor’s gross negligence was not the major contributing cause of the injury 

Florida case law has established how gross negligence must differ from ordinary negligence. Gross negligence involves a course of conduct that a reasonable and prudent person would know is most likely to result in injury. The three elements necessary to prove gross negligence include: 

  • An imminent or clear and present danger exists that is more than a usual peril
  • The subcontractor is aware of the danger
  • The subcontractor’s actions show a conscious disregard for the consequences

The Right to An Immediate Appeal When Workers’ Compensation Immunity Is Denied 

For employers who comply with workers’ compensation laws, the Florida Legislature intends workers’ compensation immunity to be the rule with strictly limited exceptions. When a court rules an employer is not entitled to workers’ compensation immunity as a matter of law, Rule 9.130(a)(3)(C)(v) of the Florida Rules of Appellate Procedure allows an immediate right to appeal the decision.

The right to an immediate appeal does not exist in all rulings against immunity. It must be clear that a court’s decision was based on applicable law and not unresolved matters of fact.

Defending Workers’ Compensation Immunity

Workers’ compensation laws do not provide compensation for some other types of damages that can be recovered in a civil lawsuit. Injured employees may allege immunity should be denied in an attempt to collect greater compensation, but they often have a very difficult time meeting the necessary standards of proof. Nevertheless, the allegations must be defended to preserve immunity.

The services of an experienced Florida insurance defense law firm can help a contractor or subcontractor defend their right to workers’ compensation immunity and avoid costly litigation.