A Florida employer denied an employee his workers’ comp claim, contending that the accident did not occur within the course and scope of his employment. The employee filed a civil action against them, and the employer wanted to use the exclusive remedy defense. A Florida appellate court held that they were not barred from raising this defense, even when they had earlier claimed that no accident occurred.

McNair and Dorsey were coworkers who were employed by Armstrong’s Tree Service. McNair claims that he was injured while carrying a tree branch with Dorsey. He filed two petitions for workers’ comp benefits. His first was denied, on the grounds that there was no compensable accident. His second was denied because they said there was no compensable accident, and so it did not occur within the course and scope of his employment.

He then dismissed his workers’ comp petition and instituted a civil suit, alleging negligence on the part of both Armstrong and Dorsey. He said Armstrong could not claim that workers’ comp provided his exclusive remedy, since they had claimed he never suffered a compensable accident within the course and scope of his employment.

A trial court granted Final Summary Judgement in favor of Armstrong, saying McNair’s exclusive remedy was through workers’ comp. Upon appeal, the court noted that under certain circumstances an employer was barred from utilizing exclusive remedy as a defense-

1. When the employer made a representation of material fact that was contrary to a later-asserted position
2. There had been reliance on that representation, and
3. There was a change in position detrimental to the party claiming estoppel that was caused by the reliance on said representation

The court looked at this case and stressed that an employer should not always be prevented from claiming exclusive remedy immunity simply because they denied compensability in an earlier proceeding. While they took “inconsistent positions” in the comp proceedings and the tort suit, the court determined it was not the kind of inconsistency that should bar them from claiming workers’ comp immunity.

They had denied that any accident occurred within his employment. After he filed suit, Armstrong filed a motion for summary judgment. Since the injury would have been covered under workers’ comp, a trial court did not err in granting them summary judgment and finding that Armstrong was not barred from claims workers’ comp exclusivity. They had not “blown both hot and cold”.