If the Law Has Changed, Should You Change Too?

IF THE LAW HAS CHANGED, SHOULD YOU CHANGE TOO?

By: Larry R Leiby, Esquire and Robert S. Tanner, Esquire

About the Author: Larry Leiby, Esq. was the founder and first chairman of the Florida Bar Construction Law Committee in 1976. He is the author of the Florida Construction Law Manual. He is Board Certified in Construction Law and was on the Construction Law Certification Committee that creates and grades the tests for construction law board certification. He was awarded the lifetime achievement award by the Florida Bar Construction Law Committee and teaches construction law at the Florida International University College of Law. He can be reached at leiby@mkpalaw.com. For more information, please visit www.mkpalaw.com.

In Ramcharitar v. Derosins, 2010 WL 1875616 (Fla. 3d DCA May 12, 2010), Richard Ramcharitar ("Employee") worked for American Airlines. American Airlines had a subcontract with Sky Chefs, Inc. ("Subcontractor"). erzulie Derosins ("Derosins") was Subcontractor's employee. In 2001, while Employee was engaged in his work for American Airlines, he was allegedly struck and injured by one of Subcontractor's vehicles driven by Derosins. Employee received workers compensation benefits from American Airlines. Employee also sued Subcontractor and Derosins. Subcontractor and Derosins asserted that Employee's lawsuit was barred by immunity provided by the version of the Workers' Compensation Law that was effective at the time the injury occurred. The trial court agreed and granted summary judgment in favor of Subcontractor and Derosins. Employee appealed.

The appellate court noted that an earlier version of the Workers' Compensation Law created immunity for a subcontractor against tort claims asserted by an employee of either the general contractor (vertical immunity) or another subcontractor (horizontal immunity), if the general contractor had workers' compensation insurance for the injured employee. The reason for the immunity was that the employees of the general contractor and subcontractor were part of a common enterprise. The legislature amended the Workers' Compensation Law to eliminate the horizontal immunity protection that a subcontractor enjoyed from suits brought by an employee of another subcontractor. Due to that change by the legislature, the Florida Supreme Court found that the "common enterprise" justification had been modified and, as a result, the Court held that subcontractors also no longer enjoyed vertical immunity from lawsuits brought by a general contractor's employee. In 2003, the legislature amended the law to restore both vertical and horizontal immunity.

Based upon that historical analysis of the law, the appellate court noted the parties did not dispute that Employee was injured before 2003 and, therefore, should have the right to sue Subcontractor and Derosins. However, Subcontractor and Derosins argued that Employee filed his suit in 2005, after the 2003 amendments that restored subcontractor immunity. Ordinarily, the law in effect at the time of incident giving rise to the lawsuit will govern and new laws or amendments to existing laws do not apply retroactively. A law may apply retroactively if "the statute itself expresses an intent that it apply retroactively" and if the retroactive application is constitutional.

The appellate court found that contrary to an intent to be applied retroactively, the statute said that its immunity provisions would become effective three months after other provisions of the statute. Consequently, the appellate court held that the law existing at the time that the injury occurred must be applied and, therefore, Subcontractor and Derosins had no immunity from Employee's lawsuit.

Although Subcontractor did not have statutory immunity, it may have had insurance, or it may have been able to procure insurance, to protect against any judgment in favor of Employee. Proper and sufficient insurance coverage is an important aspect of protecting a company from accidents and events that occur in the course of conducting its business. Annual reviews of your insurance coverages and insurance needs may make a critical difference.