FWA, a trial court addressed whether Fla. Stat. 440.11 (the exclusive remedy
provision of the workers’ compensation act) was invalid as unconstitutional,
in violation of the Due Process Clause of the 14
th Amendment of the U.S. Constitution, the Access to Courts provision of
Article 1, Section 21 of the Florida Constitution, a violation of the
Florida Constitution’s right to trial by jury and a violation of
the Florida Constitution’s right to be rewarded for industry.
Fla. Stat. 440.11 provides: “The liability of an employer prescribed
in s. 440.10 shall be exclusive and in place of all other liability, including
vicarious 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 admiralty on account of such injury or death
. . . .” The Court noted that the foregoing statutory provision
was in place when the Constitution of 1968 was adopted and later ratified.
The Declaration of Rights, including the right to be rewarded for Industry,
“became part of the statutory and procedural law of Florida, which
fixed the rights of the citizens, which rights could only be changed (not
eliminated) and if changed must be replaced by a ‘reasonable alternative.’”
The Court noted, however, that in 1970, there was a significant change
to the rights of the citizens of Florida when the legislature repealed
the right of an employee and an employer as contained in sections 440.05
and 440.06 to ‘opt out’ of coverage of the Act, a right which
was present as of the date of the Constitutional revision in 1968. There
was no reasonable alternative or additional benefit provided by the legislature
in exchange for the elimination of the right to opt out. The Court found
that the repeal of the opt out right became even more significant when
the Florida Supreme Court, in 1973, moved the state from contributory
negligence to comparative negligence, which would have prompted more employees
to consider opting out. The 1973 Legislature made no changes to the Act
to account for the change in the value of the ‘trade’: workers’
compensation exclusivity in exchange for the value of the lost tort remedy.
Injured workers lost their right to ‘opt out’ without any
concomitant benefit to take the place of that right.
The Court found that injured workers lost many more rights which were in
place in 1968. One such loss is the loss of any remuneration or benefit
for partial loss of wage earning capacity. The Court noted that this right
was eroded over time, until it was eliminated entirely without any reasonable
alternative in 2000. In 2003, the Legislature eliminated
all compensation for loss of wage earning capacity that is not total in character.
No reasonable alternative was put in its place. Thus, the Court ruled
that the right to be compensated for permanent partial disability has
been completely eliminated in violation of the constitution, and as required
by, among other things,
Kluger v. White, 281 So. 2d 1 (Fla. 1973).
The Court further noted that statutes are subject to strict scrutiny if
they impinge upon fundamental rights. The Court found that the workers
compensation act impinges upon several fundamental rights including the
inviolate right to trial by jury. “Fundamental rights guaranteed
by the Constitution were eviscerated by merely enacting a statute and
relying upon the policy power of the state for validity. The test of constitutionality
applicable to an act that invokes the police power of the state is variously
described as proof that the act is necessary to protect public morals,
health, safety or welfare. Such an act or amendment to an act based upon
the police power of the state must be supported by proof of an overpowering
or compelling public necessity requirement, the regulation must be necessary
for the public welfare.” The test for ‘overpowering public
necessity’ is whether the Act promote public morals, health, safety
and welfare of the citizens. The court found that the workers compensation
act fails to promote any of the foregoing. The court noted that under
the strict scrutiny test, the statute is presumed unconstitutional, and
the presumption can be rebutted by showing that the statute advances a
compelling state interest. No evidence was submitted rebutting the presumption.
The court added, that while there may have been a compelling state interest
in 1935, no such interest exists today.
The court additionally noted that the workers compensation act may have
been a reasonable alternative to tort litigation up to 1968. However,
the “benefits in the Act have been so decimated since then that
it no longer provides a reasonable alternative to tort litigation. The
law in Florida has changed to comparative negligence. The Act is the most
intrusive way to compensate citizens for injuries on the job by taking
away access to courts and removing the inviolate right to trial by jury.”
Accordingly, the court ruled that Chapter 440 is facially unconstitutional
as long as it contains section 440.11 as an exclusive replacement remedy.