February 24, 2021
COVID-19 Lawsuit Against Publix Allowed to Go Forward
On February 5, 2021, a Miami-Dade Circuit Court denied Publix’s motion to dismiss a wrongful death lawsuit filed by the family of a deli worker who died of COVID-19. The deli worker, Gerardo Gutierrez, had been exposed to the virus over two days in March of 2020 while working next to an employee who was displaying symptoms. According to the lawsuit, the Miami Beach Publix had prohibited Gutierrez and other employees from wearing masks. The lawsuit alleges that store managers were concerned that masks would “scare” customers.
Typically, under Florida law, when an employee is injured or killed while working, the employee or the employee’s heirs can only receive workers’ compensation benefits and cannot file a lawsuit. Workers’ compensation benefits include lost wages, medical expenses, and a limited lump sum death benefit. Because personal injury and wrongful death lawsuits can include compensation for physical and mental pain and suffering, these lawsuits can provide for significantly larger financial awards than workers compensation claims. There is an exception in Florida’s workers’ compensation law that allows workers to file personal injury or wrongful death lawsuits in cases where the employer intentionally injures an employee or acts in a manner that is certain to cause injury.
In seeking to have the lawsuit filed by Mr. Gutierrez’s estate dismissed, Publix argued that the lawsuit involved only allegations of ordinary negligence and that Publix should only be required to pay the workers’ compensation death benefit. Attorneys for Mr. Guttierrez’s estate argued that Publix misled employees to believe that they were safe without masks when Publix knew or should have known that the mask ban would increase employees’ risk of contracting COVID-19.
The lawsuit alleged that Mr. Gutierrez worked beside a female employee who had COVID-19 on March 27 and March 28. Mr. Guitierrez was hospitalized on April 10 and died on April 28. The United States Centers for Disease Control and Prevention didn’t recommend mask wearing for the public until April 3.
The court’s decision only means that the lawsuit can proceed to the initial stages. Publix will have another opportunity to ask the court to rule in its favor after depositions are taken. It is noteworthy that not one single Florida court has ever found the intentional act exclusion to the workers’ compensation law to be applicable and allowed an injured employee’s lawsuit against an employer to result in a final judgment in favor of the employee. Contact Tuttle Larsen, P.A., we are aggressive, experienced advocates who will not hesitate to go all out to protect you.