Workers’ Compensation Law Prof Blog

The Fickle Nature of Open Courts Challenges: Developments in Utah and Florida

The Utah Supreme Court recently rejected two constitutional challenges to the Utah workers' compensation statute that were each advanced under that state’s “open access” (often known as an “open courts”) provision.  The Florida Supreme Court, on the other hand, recently upheld an open courts provision challenge under its state constitution in a medical malpractice case. Because workers’ compensation legal battles are likely to be primarily waged for the foreseeable future as state constitutional challenges, and because open courts theories are a common form of state constitutional challenge, it can be instructive to follow these kinds of cases closely.

The essence of an open courts challenge is not difficult to understand: a preexisting right is statutorily, substantively modified—arguably to the point of elimination—and a party harmed by the alteration/elimination argues that, under the circumstances, the court has effectively been “closed” to that party. The claim is usually not ignored because state open courts provisions date to John Adams’ 1780, Massachusetts Constitution, which in turn derived its open courts language directly from the Magna Carta.

One major conceptual question in these challenges is what a state believes is meant by the term “open courts” under its state constitution. A narrow reading of the phrase holds that it means no more than that courthouse doors should not be locked or filing fees set too high. (That is, it is merely procedural). A more generous interpretation views the phrase as requiring substantive legal remedies adequate to render access to the courts meaningful. I speak at length about these different interpretations here at pp. 162-172. 

Open courts challenges are closely related to the concept of “quid pro quo” and center on three possible approaches to evaluating legislatures’ modification or elimination of remedies: a historically tied approach, a “reasonable alternative” public policy approach, and a legislative power approach. The historically tied approach holds that the [open courts and remedies] clauses protect only common law causes of action that existed at the time of the adoption of the constitutional clause, which are to be preserved unless the legislature substitutes another adequate remedy or “quid pro quo” for the affected litigants. The public policy approach permits the legislature to limit any cause of action and remedy if it creates a reasonable alternative, but, even without creating a substitute, it may alter former rights if it acts for a very important reason or is responding to an overwhelming public need. The third theory allows legislatures broad latitude to alter or eliminate common law rights and remedies by redefining the notion of legal injury. This is often seen as a form of legislative supremacy. (More after the fold)

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Skillful Law Review Writer Focuses on the Heavy Burden on Plaintiff under Florida's Intentional Injury Exception

             In a new article, the author gives a short history of the workers’ compensation program -- and then sets forth a criticism of such systems when they unfairly restrict workers’ injury rights.  See Mary Haupt, Workers’ Compensation and the Remedial Waiver, 21 Barry Law Review 217 (2016).

            The writer, a recent graduate of Orlando’s Barry University Law School, focuses, in particular, on what she describes as Florida’s highly restrictive intentional injury exception. That law was added to the Workers’ Compensation Act in 2003.  

            In Florida, the worker, to make out an intentional tort, and hence avoid the exclusive remedy, must prove by clear and convincing evidence: (1) that the “employer’s conduct was ‘virtually certain to result in injury or death’; … (2) [that] the employee was not aware of the risk; [and (3), that] the employer either ‘deliberately concealed or misrepresented the danger.’” Florida Statutes § 440.11(1)(b)(2). Haupt states that this statute has been afforded sharp teeth by the courts. The leading case seems to be R.L. Haines Constr., LLC v. Santamaria, 161 So.3d 528 (5^th DCA 2015), review denied (Fla. 2016). There, a worker perished after his employer directed him and other employees to install immense steel columns only 44 hours after application of a special adhesive, when the manufacturer’s “curing instructions” admonished that 72 hours must elapse before such installation; as a result of employer having ignored this prescription, a column fell, causing the worker’s death. The trial court refused to dismiss the case, but the Fifth DCA reversed, concluding that defendant’s conduct did not meet the “virtual certainty” standard.    

            The court hence confirmed that the legislature, with its 2003 amendment, had imposed a heavy burden on injured workers to make out an intentional tort claim. The author notes that she has been unable to find any reported case, since Haines, where the plaintiff has been successful in gaining a foothold under the statute. Most cases, she states, affirm trial court rulings granting employer summary judgment motions, having concluded that the plaintiff cannot prove “virtual certainty.”

            Haupt, citing a 2000 article, states that Florida is following the prevailing approach among states relative to the intentional tort exception. Most states, she posits, are declining to follow, or are overthrowing, the more liberal “substantially certain to cause harm” conceptualization of “intentional.” See Michele Gorton, Intentional Disregard: Remedies for the Toxic Workplace, 30 Environmental Law 811 (2000). The author finds this trend unsatisfactory. She reviews, in this regard, theoretical ideas surrounding the rights of the injured, and asserts that the heavy burden imposed in Florida, and in most states, constitutes an injustice.            

            The author, concluding, is impressed that workers’ compensation is a worthy system, as it “facilitates outcomes that are more efficient for employees and provide a level of certainty to employers.” “Yet,” she argues, “the exclusive remedy … should not encompass intentional wrongdoings by an employer that the employer knows or is ‘substantially certain’ will result in injury or death to its employee. Because a right without a remedy is not a right at all, as Florida case law demonstrates, the exception to the system for intentional wrongdoings should be revisited.”