Thе appellant, Dr. Chiang, seeks our review of the trial court’s order dismissing with prejudice his third-party contribution claim filed against Wildcat Groves, Inc. (Wildcat), Citrus Self-Insurers Fund (the Fund), and PCA Solutions, Inc. (PCA) (collectively the appellees) on the basis that the immunity provisions of Florida’s Workers’ Compensation Act insulated the appellees from “common liability” under Florida’s Uniform Contribution Against Tortfeasors Act.
Dr. Chiang’s former patient, Walter Kitschke (Kitschke), sued him for medical malpractice arising out of medical treatment administered in connection with injuries sustained in an automobile accident occurring on November 29, 1990. In due course, Dr. Chiang filed a fourth amended third-party complaint against the appellees alleging that they breached certain duties of care involving Kitschke’s treatment which rendered them liable in contribution as joint tortfeasors fоr all or part of the damages which Kitschke may recover in the malpractice action. Dr. Chiang alleged the following factual scenario in support of his contribution claim.
On the day of the accident, Kitschke was employed by Wildcat which had workers’ compensation insurance coverage through the Fund with PCA as the servicing agent. Following the accident, the appellees undertook the responsibility of providing workers’ compensatiоn benefits to Kitschke, including the furnishing of home health care services through a nursing agency. On January 18, 1991, however, the appellees ceased providing benefits to Kitschke because their investigation determined that Kitschke was traveling from home to a work site when he was involved in the automobile accident. They claimed, therefore, that based on section 440.092 Kitschke’s injuries were not suffered during the course of his employment and thus he was not entitled to workers’ compensation benefits.
After the termination of workers’ compensation benefits, however, the appellees and Kitschke entered into a settlement agreement pursuant to section 440.20(12)(b), whiсh was later approved by a judge of compensa
In light of these developments, Dr. Chiang specifically alleged that Kitsehke “was not in the course and scope of his employment at the time of the November 29, 1990 motor vehicle accident” and that the “the injuries suffered by [Kitsehke] as a result of the accident and the sequela therefrom are not compensable claims under the Florida Workers’ Compensation Act.” He further alleged that “[t]he monies paid to [Kitsehke] by Wildcat, the Fund and PCA, both prior to and after January 18, 1991, were gratuitous in nature and did not constitute workers’ compensation benefits.”
Given this factual scenario, Dr. Chiang asserted that Wildcat, the Fund, and PCA assumed a common law duty of care to Kitsch-ke which required them to act reasonably and with due regard for Kitschke’s health and well-being as a result of paying benefits in the absence of a statutory duty to do so. He further claimed that Wildcat, the Fund, and PCA breached this duty in two significant respects. First, they selected a home health care company which was incapable of delivering the care and treatment which Dr. Chiang ordered for Kitsehke. Seсond, their sudden and immediate cessation of benefits to Kitsehke occurred at a critical period of time in his recovery when he was in need of therapy and treatment for an infection. As a consequence of these negligent acts, Dr. Chiang alleged that Wildcat, the Fund, and PCA caused or contributed to the injuries (which included the amputation of a leg) which formed the basis of Kitschke’s malpractice action and that they were or may be liable to Dr. Chiang in contribution as joint tortfeasors for all or part of the damages which Kitsehke may recover against Dr. Chiang.
Dr. Chiang based his contribution claim on Florida’s Uniform Contribution Among Tortfeasors Act, section 768.31. Subsection (2)(a) of the act provides for a right of contribution among joint tortfeasors, a right which was generally unknown under the common law. See Westinghouse Elec. Corp. v. J.C. Penney Co.,
The appellees responded by presenting a common argument to the trial court in support of dismissal of Dr. Chiang’s contribution claim. The sоle thrust of their argument
The trial court accepted the appellees’ argument and rendered an order dismissing Dr. Chiang’s contribution claim with prejudice “based upon the issues of workers’ compensation immunity.” In doing so, it specifically cited to Michael and Whitehurst, as well as chapter 440 generally. Although we fully agree with the principles and results announced in those cases, which we will analyze below, nevertheless we conclude, based on the state of this record, that they do not control the disposition of this case and that the trial court erred in relying on them in support of dismissal.
In Michael, an injured worker had filed a workers’ compensation claim against a subcontractor and its insurance carrier as a result of suffering injuries in an alleged employment-related accident. The subcontractor and the carrier resisted the claim on the basis that the worker was аn independent contractor at the time of the accident and not an employee of the subcontractor. A judge of compensation claims agreed with this contention and ruled that the worker was not entitled to workers’ compensation benefits. The worker appealed this determination but later dismissed the appeal after entering into a workers’ compensation lump sum settlement agreement with the subcontractor and the carrier in accord with section 440.20(12)(b). Subsequent to the settlement, the worker sued the subcontractor and its general contractor in tort for the same injuries. The trial court entered summary judgment against the worker based on the doctrine of election of remedies because it determined that the worker had clearly elected his remedy when he voluntarily accepted a settlement in the workers’ compensation forum.
In upholding the entry of summary judgment, the court in Michael relied on the well-established law of this state that when “the injured party effectively pursues and receives workers’ compensation benefits, an election of remedies is found” and that it is only when “the injured party does not actively pursue such benefits [that] a factual determination is warranted regarding whether the injury was within the scope of employment.” Id. at 135; see also Ferraro v. Marr,
In upholding the dismissal, the court in Whitehurst also relied on well-settled Florida law that to support an action for contribution under section 768.31(2)(a), the pleading must allege common liability but that such common liability cannot exist where the employer is immunized under section 440.11(1). Id. at 105; see also Seaboard Coast Line R.R. Co. v. Smith,
Against this backdrop, we begin our resolution of this case by adhering to the fundamental principle that “[t]he function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action.” Connolly v. Sebeco, Inc.,
Measured against these legal standards, we conclude that Dr. Chiang’s third-party complaint more than adequately alleges a claim for contribution against the appel-lees. Assuming the truthfulness of its allegations and attached exhibits, the complaint clearly establishes that at the time of the accident Kitschke was not within the course and scope of his employment thus precluding the invocation of the immunity provisions of section 440.11(1) at this stage of the proceedings to bar Dr. Chiang’s contribution claim. Our conclusion flows from our decision in Wishart v. Laidlaw Tree Service, Inc.,
In line with this conclusion, we must necessarily reject the appellees’ argument that under Whitehurst the only circumstance in which a third-party contribution claim against an employer will lie so as to overcome the immunity provided in section 440.11(1) is if the third-party tortfeasor alleges that the employer either exhibited a deliberate intent to injure the employee or engaged in conduct which was substаntially certain to result in injury or death to the employee. Clearly, under the rationale of Wishart and Velez, an allegation by a third-party tortfeasor that the employee’s injury or death did not occur within the course and scope of employment would be sufficient to state a cause of action in contribution because such an allegation, if true, would preclude the application of the exclusive remedy of workers’ compensation found in seсtion 440.11(1). Accordingly, if a third-party tort-feasor can legally circumvent the immunity provisions of section 440.11(1) and establish an employer’s “common liability” for contribution under section 768.31(2)(b) by sufficiently alleging that an employer’s acts resulting in injury to an employee during the course of employment rose to the level of an intentional tort or virtual certainty of injury or death as required by Whitehurst, we see no logical reason why such a tortfeasor cannot accomplish the sаme result by sufficiently alleging that an employee’s injuries did not arise out of and in the course of employment consistent with the principles of Wishart and Velez.
Furthermore, in our view, the result reached in Whitehurst must be analyzed within the specific factual context of that case. As noted, the Department of Transportation’s attempt to overcome the employer’s immunity established by section 440.11(1) was based on a theory that the employer exhibited acts of gross negligence resulting in injury to the employee while the employee was clearly engaged in work-related activities and not on a theory that the injury did not occur within the course of employment, an approach which Dr. Chiang has used in this case. Viewed from this perspective, the court in Whitehurst did nothing more than follow the established precedent that before an employer loses workers’ compensation immunity “from tort actions for work-related injuries or death [,]” the employer must either “exhibit a deliberate intent to injure or engage in conduct which is substantially certain to result in injury or death.” Thompson v. Coker Fuel, Inc.,
Accordingly, when Whitehurst’s holding is analyzed in its proper context, it does not conflict with the result we reach in this case because the court in Whitehurst was not faced with an allegation in the department’s complaint, as we are in Dr. Chiang’s complaint, that the injuries suffered by the employee were not “work-related.”
We note, of course, that the appellees have available to them the right to plead and prove through the affirmative defense of workers’ compensation immunity that Kitsch-ke was injured during the course of his employment. See, e.g., Walker v. I.T.D. Indus., Inc.,
In deciding this case, we have been mindful of the doctrine of election of remedies as applied within the workers’ compensation arena as discussed in Michael. We have also considered the allegations and exhibits of Dr. Chiang’s complaint which reflect that Kitsch-ke may have made such an election. These factоrs, however, do not alter our conclusion that the trial court erred in dismissing the contribution claim with prejudice.
As previously noted, the doctrine of election of remedies forecloses an employee from later suing an employer in tort after the employee actively pursues and receives workers’ compensation benefits. See Mandico v. Taos Constr., Inc.,
Furthermore, as can be easily gleaned from the complaint and its exhibits, Dr. Chiang was not a party to the workers’ compensation proceeding or the settlement agreement which was approved by the judge of compensation claims. Accordingly, he cannot be bound by, nor have his interests affected by, what transpired in those proceedings in terms of Kitschke’s election of remedies. See Security Professionals, Inc. v. Segall,
It may very well come to pass that the appellees will bе able to establish that Kitschke was in fact injured in the course of his employment, notwithstanding the contrary position they espoused in the workers’ compensation proceeding. If so, they would then be entitled to immunity under the provisions of section 440.11(1) and Dr. Chiang would be precluded from seeking contribution from them as joint tortfeasors under section 768.31(2)(b) because of the absence of “common liability” engendered by such im
Reversed and remanded for further proceedings.
Notes
. Because, as will be noted, the accident which is at the center of this appeal occurred in November of 1990, we use the applicable provisions of the 1990 version of the workers' compensation law, see chapter 440, Florida Statutes (Supp. 1990), and the 1989 version of the contribution act, see section 768.31, Florida Statutes (1989), as the bases for our opinion.
. Section 440.092(2), styled "Going or Coming,” provides that "[a]n injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the emрloyer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer."
. The Fund, as the workers’ compensation carrier, and PCA, as the servicing agent, enjoy the same immunity from liability as does the employer Wildcat. See § 440.11(3).
. We note that the appellees did not directly attack Dr. Chiang’s theory of liability premised on their gratuitous assumption of a common law duty of care to Kitschke. See, e.g., Parrotino v. City of Jacksonville,
. Although we are authorized under this standard to consider the settlement agreement between the appellees and Kitschke in deciding this case, we do not decide whether the agreement would bе admissible at any trial of Dr. Chiang’s contribution claim because that issue is not before us. That issue must be determined by the trial court in accord with the relevant provisions of Florida's Evidence Code, including section 90.408, Florida Statutes (1995), governing the admissibility of compromises and offers to compromise, as well as relevant case law interpreting that section. See, e.g., Ritter v. Ritter,
. Section 440.09(1) styled "Coverage” provides in part that "[c]ompensation shall be payable under this chapter in respect of disability or death of an employee if the disability or death results from an injury arising out of and in the course of employment.” (Emphasis added.)
. We are also not in conflict with Seaboard Coast Line Railroad Co. v. Smith,