.

What's Hot in Workers' Comp

Fifth District Court of Appeal Clarifies Civil Suit Bar: Workers Must First Seek Comp Benefits Before Suing Employers

Steak ‘N Shake, Inc. v. Amber Nicole Spears, Fla. 5th DCA, No. 5D2024-0148, June 13, 2025

July 1, 2025

by Blake J. Hood

A three-judge panel of the Fifth District Court of Appeal issued an intriguing opinion concerning employers’ civil suit immunity and compensability determinations. The opinion sets forth a process for claimants seeking to file civil liability suits against their employers and identifies the final arbiters of workers’ compensation compensability determinations. It does so, acknowledging that no other court has addressed this specific issue.

Under Florida law, with limited exceptions, employers are immune from civil liability when employees are injured at work. § 440.11(1), FLA STAT. (2024). Employees, likewise, may seek only those remedies available under the workers’ compensation statute, though such remedies are available under a no-fault basis, again with limited exceptions. This is the so-called “bargain” struck in Florida’s legislative system: limited economic remedies for employers in exchange for employees’ access to no-fault remedies. 

In Steak ‘N Shake, Spears was held at gunpoint while at work and was forced into a backroom where a gunman threatened to kill her. The gunman grabbed Spears by the shoulder and neck during the encounter. Spears experienced severe emotional distress as a result of the robbery, but rather than pursue a claim for workers’ compensation benefits, she sued her employer for civil damages. She argued that her case was not compensable because elsewhere in Florida’s Workers’ Compensation Act mental injuries are deemed non-compensable if they are not accompanied (or caused) by physical injuries. § 440.093, FLA. STAT. (2024). The employer/carrier argued, however, that Spears could not make the compensability determination on her own and was required to at least request benefits within the workers’ compensation system as a necessary condition to filing a civil suit. The civil trial court agreed with Spears and ruled that she was permitted to file a civil suit premised on its determination that her accident and injuries were not compensable.

The Fifth District Court of Appeal disagreed. As the opinion acknowledges, the District Court has exclusive jurisdiction over most workers’ compensation cases. Of note, however, is the opinion’s author, Judge Makar, who was appointed to the First District Court of Appeal in 2012 and recommissioned to the Fifth District Court of Appeal in 2023. Thus, Judge Makar, while no longer sitting on the First District Court, authored this opinion with extensive familiarity with workers’ compensation jurisprudence. Moreover, other circuit courts and District Courts of Appeal routinely issue rulings and opinions on cases that broach workers’ compensation issues. 

It is with this background that the three-judge panel confronted a new question and announced a new rule, at least within the Fifth District: employees may not file tort claims against their employers in circuit court without first seeking a determination of whether they are entitled to workers’ compensation benefits. The court highlighted language in Florida Statutes § 440.13(1)(d), which states that compensability questions are determined by only two entities, a “carrier” or “judge of compensation claims.” A Florida circuit judge, therefore, lacks such authority.

As well, claimants may not unilaterally determine that their claims are non-compensable; they may not serve as their own judge of compensation claims and thus bypass the limitations of recovery under the Workers’ Compensation Act. 

In the Steak ‘N Shake case, while Spears alleged in her civil suit that she had no physical injury that required medical treatment, the Fifth District Court of Appeal held that, in the first instance, such factual matters about compensability must be reviewed by a carrier or judge of compensation claims. Because Spears did not initially submit a claim under the workers’ compensation system as her first step in seeking a remedy, neither the carrier nor a judge of compensation claims made a compensability determination. The Fifth District Court, thus, held that she thereby “leapfrogged” the statutory framework, and it remanded the case to the trial court to find whether a claim for workers’ compensation benefits had been filed with the carrier in the interim. If not, the carrier would be entitled to dismissal.

It should be noted that this case does not appear to disturb the well-established line of cases holding that claimants may pursue civil suits against their employers when the employers/carriers affirmatively deny compensability. Thus, employers/carriers will still be estopped from taking mutually exclusive positions regarding compensability and civil immunity in different legal forums. In other words, even under Steak ‘N Shake, employers and carriers may not deny compensability of a workers’ compensation claim and subsequently assert civil immunity if the claimant sues in civil court. 

This Fifth District Court of Appeal case does hold, however, that employees must first pursue workers’ compensation benefits, receive an adverse determination from either a carrier or a judge of compensation claims, and only then has the right to pursue civil remedies against their employers for accidents and injuries that, at first glance, appear to be work related.  

 

What’s Hot in Workers’ Comp, Vol. 29, No. 7, July 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Jason Banonis Holds PDI Attorney of the Year Award with the PDI President

News

Jason Banonis Named Attorney of the Year by the Pennsylvania Defense Institute

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

State of Insurance: Q2 Notes From Pennsylvania

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Thought Leadership

Ohio Supreme Court Holds That a Binding Appraisal Award May Not Be Set Aside Absent Specific Evidence of Manifest Mistake or Fraud

On July 23, 2026, the Ohio Supreme Court issued a rare opinion on the binding effect of an appraisal award in a property insurance policy.  The Court in One Church held: A binding appraisal award will not be set aside unless an error is so palpably wrong that it undermines the intent of the agreement, such as corruption or gross mistake, not a mere error of judgment—To plead a claim of mistake with particularity as required by Civ.R. 9(B), facts alleged in a complaint must constitute the elements of mistake—Allegation that additional, hidden damage was discovered after appraisal award failed to state a claim of mistake that could justify setting aside binding appraisal.  The case arose out of a claim brought by One Church against its insurer, Brotherhood Mutual Insurance Company for roof damage from a storm. Pursuant to the terms of the insurance policy, the parties agreed to submit the matter to appraisal. The two appraisers inspected the building, and both appraisers agreed that the damages were $313,271.98. The insurer paid the agreed appraised amount.  Thereafter, the insured submitted a claim for an additional $206,663.09 in damages. The insured argued that these additional damages were not discovered until after the repairs began, and that they should be permitted to submit an additional claim, even though there had already been a binding appraisal of damages. The insurer refused to pay the additional damages, and the insured sued for breach of contract and bad faith.  In the trial court, the insurer moved to dismiss for failure to state a claim, arguing that the binding appraisal award barred any further claims. The insured took the position that additional hidden damages could not be discovered until after the repairs began, and therefore there was a mutual mistake. The trial court dismissed the case on the insurer’s motion, because there was no “evidence of fraud, misfeasance, or mistake”. The Court of Appeals agreed that appraisal awards are generally binding, but noted that an appraisal award can be set aside for fraud or manifest mistake. The Court of Appeals reversed and remanded the case to the trial court, finding that the insured had pled mistake with sufficient particularity. The insurer appealed to the Ohio Supreme Court. On appeal, the Ohio Supreme Court reversed the Court of Appeals, and reinstated the trial court decision dismissing the case for failure to state a claim upon which relief can be granted. The Supreme Court found that since the insured had already demanded appraisal, and the appraisal award was binding, “something more than error of judgement, such as corruption in the arbitrator, or gross mistake” must be pled with particularity, and proven for the insured to override the appraisal award. Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. This emphasizes the fact that there is minimal case law deciding the effect of binding appraisal clauses in property insurance policies, and makes this case all the more significant. A lengthy dissent was written by Justice Fisher, who would have affirmed the Court of Appeals decision reversing and remanding the case for a decision on the merits. Of course, the decision works both ways, and an insurer dissatisfied with a binding appraisal award will likewise be without further recourse absent evidence of corruption, fraud, misfeasance, or manifest mistake, which must be pled with particularity. To constitute manifest mistake, “the mistake must be of such character that the arbitrator or appraiser would have corrected it had it been called to his attention.”  Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970).  The majority opinion does not specifically identify what would have been sufficient to plead mistake with particularity, or if the insured could have amended the complaint to overcome the deficiencies. The dissent argues that this was not really a case alleging mistake, but rather a question of contract interpretation. The insured did not challenge the appraisal, but argued that the hidden damage was not part of the appraisal, and the appraisal only covered the known damages.  However, this argument did not carry the day with the majority.  *Thomas F. Glassman, a shareholder in Marshall Dennehey’s Cincinnati office, filed a brief in the Ohio Supreme Court on behalf of the Ohio Association of Civil Trial Attorneys, in support of the insurer’s position.

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

Thought Leadership

The Best Defense is Already in the File: Documentation in Civil Rights Litigation

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial