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An employer cannot deny a workers’ compensation claim on the grounds that a shooting injury was not work-related then turn around and argue it has immunity from a tort lawsuit because the incident happened at work, a Florida appeals court decided this week.

The opinion by the 3^rd District Court of Appeals upheld a Miami-Dade Circuit Court decision and followed previous appeal court decisions on the same issue. And as workplace shootings appear to be on the rise around the country, the ruling could further put employers and their insurers in a tough position – having to choose between higher workers’ comp costs or potentially costly tort litigation from victims.

The Bottling Group vs. Bastien case stemmed from a 2020 incident at a Pepsi bottling company in Medley, Florida, near the Miami International Airport. Giovanni Bastien was seriously injured when an “aggressive” co-worker, apparently disgruntled over Bastien’s union membership, shot him three times while Bastien was on break, in his vehicle on a nearby roadway. A Miami TV news quoted police as saying the two men had left the work site to find a place to fight out their differences over the union issues.

While recovering, Bastien filed a workers’ comp claim, but Bottling Group instructed Sedgwick, the claims management firm, to deny the claim. “Injury did not occur in the course or scope of employment. Accident/Injury occurred off premises,” the employer noted, the court explained.

Bastien then filed a tort lawsuit against PepsiCo, arguing that the bottling company and the parent company failed to discipline or terminate the aggressive employee, despite numerous complaints from co-workers. In response, Pepsi asked the trial court to dismiss the lawsuit, contending that the company was protected from tort actions by the exclusive remedy and the grand bargain of the workers’ comp system.

Bastien’s attorneys moved for “estoppel,” to stop the employer from claiming workers’ comp immunity. The trial court sided with the shooting victim, denying the bottling company’s defense.

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On appeal, the 3^rd DCA agreed. The opinion is The three-judge panel cited Florida appeals court rulings from 1999, 2010 and 2012, all of which underscored the inconsistency of employers/insurers who ask for immunity after already denying a claim.

In the 2012 opinion by the 3^rd DCA, Ocean Reef Club vs. Wilczewski, the 2012 court wrote: “Where, as here, the carrier’s denial is absolutely clear on its face that the reason for denial is ‘no accident in the course and scope of employment,’ it is ‘clearly irreconcilable’ with the defense of tort immunity asserted by Ocean Reef.”

Ocean Reef could not then contend that the injuries were related to work and therefore covered by workers’ compensation “when it has clearly denied coverage on inconsistent grounds earlier.”

The same court, 12 years later, did not deviate.

“…We impute no error to the decision to preclude the presentation of a workers’ compensation immunity defense,” appeals court Judge Bronwyn Miller wrote for the panel this week. The case now goes back to the Miami Dade Circuit Court for continued trial proceedings.

The attorneys in the case could not be reached Thursday. Michael Winer, of Tampa, a claimants’ lawyer involved in another workplace shooting case now on appeal, said the decision upholds a “pretty solid feature” of Florida law, laid down by most district courts of appeals for the past two decades.

The Bastien case or others like it could ultimately be impacted by Winer’s case. In Normandy Å˽ðÁ«´«Ã½Ó³»­ vs. Mohammed Bouayad, Winer’s client was shot seven times while working at a car rental place. The assailant was never apprehended, and questions remain about his motive and relationship to Bouayad.

The 1^st DCA held last August that while the shooting happened at the workplace, the employee did not prove that it was work-related. But the appellate judges agreed that the case raised some thorny issues and they asked the Florida Supreme Court answer the question: “When an act of a third-party tortfeasor is the sole cause of an injury to an employee who is in the course and scope of employment, can the tortfeasor’s act satisfy the occupational causation element necessary for compensability?”

The Supreme Court has yet to decide if it will answer the question. The defense attorney in the Bouayad case has said workplace injuries resulting from non-work actions, such as anger from a disgruntled lover, have consistently been deemed to be non-compensable.

But Winer has argued that if the high court declines to answer or agrees with the 1^st DCA in Bouayad it could create two standards for injury compensability – one for accidents and one for shootings. Without a remedy under workers’ compensation, it could also lead other workplace shooting victims to file tort suits against employers.

Workers’ comp insurers may benefit, but employers could face expensive negligence lawsuits.

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