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Disney, SeaWorld injured workers' lawsuits face tough odds

ORLANDO — They are two of Central Florida's biggest and best-known employers — and both face the prospect of potentially ugly lawsuits stemming from a worker's death on the job.

And yet Walt Disney World, which is being sued by the mother of a monorail driver killed in a train collision in July 2009, and SeaWorld Orlando, which is bracing for a similar suit from the husband of a killer-whale trainer drowned by an orca last February, are well insulated.

The reason: Florida law gives employers near-ironclad protection from lawsuits sparked by on-the-job injuries and fatalities. It's a legacy of a 7-year-old overhaul of the state's workers' compensation laws championed by former Republican Gov. Jeb Bush and Florida's business lobby.

Critics say the system is too heavily slanted in favor of businesses.

The tight clamp on lawsuits is "a horrible burden on the injured worker," said Matthew Noyes, a personal-injury lawyer who heads the workers' compensation group at the firm Perenich, Caulfield, Avril & Noyes in Sarasota. "The practical effect is that employers don't feel the pressure to make their workplace as safe as possible for their workers."

Boosters of the current laws argue that the system holds down costs by ensuring standardized payments in accidents and by protecting businesses from the threat of outsized jury awards.

"Workers' comp is very predictable from the insurance perspective, and workers' comp carriers can price this product and a business and an employer can figure out what the cost is going to be and go forward and do business," said William Large, president of the Tallahassee-based Florida Justice Reform Institute, a business-financed group that lobbies for tighter lawsuit restrictions. "Tort is very unpredictable."

Workers' compensation was originally established to steer claims arising from on-the-job accidents away from courts altogether.

• • •

In Florida, as in most other states, most businesses are required to carry workers' compensation insurance. And when an employee is injured on the job — regardless of who was at fault in the accident — those policies are supposed to ensure prompt payments covering medical costs and lost wages.

Workers gain the ability to obtain payment without having to go through expensive and protracted litigation. But they also lose their ability to sue their employer for larger sums.

In accidents that lead to the death of an employee, cumulative wage payments are capped at $150,000, plus up to $7,500 to cover funeral expenses, and in the cases of surviving spouses, payment of student fees for as many as 1,800 classroom hours at sanctioned career centers or 80 semester hours at community colleges.

Courts have long held that there are some limited exceptions to employers' immunity from lawsuits. In 1993, for instance, the Florida Supreme Court ruled that businesses were entitled to protections from suits provided they did not intentionally harm employees or engage in conduct that was "substantially certain" to result in injury or death.

Then in 2000, the court opened the window wider: In a case stemming from an explosion at an Alachua County chemical plant that killed one worker and seriously injured another, the court defined "substantially certain" to mean a situation in which a business should have known — rather than actually knew — its actions were likely to lead to the injury or death of a worker.

That ruling outraged Florida's business community, which was already complaining of widespread workers' compensation fraud and skyrocketing insurance costs. Companies felt "the language the Supreme Court had put out could really and significantly erode the protections from tort liability that the employers are paying workers' comp coverage to have," said Tamela Perdue, general counsel for Associated Industries of Florida, one of the state's largest business trade groups.

Industry lobbyists found allies in the state Capitol. In 2003, then-Gov. Bush and the Republican-controlled Legislature approved a 182-page rewrite of the state's workers' compensation laws that, among many other provisions, increased some benefits and curtailed others while also imposing strict caps on the fees lawyers could earn in such cases. And it dramatically restrengthened businesses' lawsuit shield.

Lawmakers abandoned the Supreme Court's "should have known" standard, instead deciding that lawsuits in worker injuries could go forward only if an employer engaged in conduct that it "knew" was "virtually certain" to lead to injury or death. And they added a provision that requires any injured employee suing his or her employer to also prove that the risk was not apparent and that the business deliberately concealed the danger.

What's more, the legislation requires that employees prove it all by "clear and convincing evidence," a higher bar than another commonly used legal threshold, "preponderance of the evidence."

• • •

It may be the biggest legal hurdles facing the families of Austin Wuennenberg, the 21-year-old Disney monorail driver killed July 5, 2009, and Dawn Brancheau, the 40-year-old SeaWorld killer-whale trainer drowned Feb. 24 of this year. Wuennenberg's mother has already filed a wrongful-death suit against Disney; Brancheau's husband has hired lawyers but has so far not sued.

Both parties would appear to have ammunition for suits: Federal regulators investigating the accidents cited Disney with a "serious" safety violation and noted multiple monorail-policy lapses and separately charged SeaWorld with an even-stiffer "willful" violation and recommended that trainers never again be allowed unprotected contact with the killer whale that killed Brancheau.

But Noyes, the Sarasota personal-injury lawyer, called the lawsuit requirements set by Florida law "nearly impossible" to meet.

Disney and SeaWorld, for their parts, declined to discuss the litigation in detail. "At this point the most appropriate way to respond to this legal matter is through the court process," said Disney spokeswoman Andrea Finger.

"Florida law concerning workers' compensation applies to the accident Feb. 24 that resulted in the tragic death of Dawn Brancheau," added SeaWorld Parks & Entertainment spokesman Fred Jacobs. "Any discussion of litigation outside that context is premature."

Disney, SeaWorld injured workers' lawsuits face tough odds 09/19/10 [Last modified: Sunday, September 19, 2010 11:45pm]
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