For pkwringleys- Business Law – Legal Concepts

Write an explanation of no more than 150-250 words about how the legal concepts in the selected case can be applied within a business managerial setting.

This is the assignment but my team already grabbed the IRAC method so I have the legal concepts part

Here is the case:

workers

compensation case

Read “The IRAC method of case study analysis.”

Select one legal case from a current event that has taken place within the past 2 years relevant to this week’s objectives.

Discuss the selected case with your Learning Team.

Brief the selected case as a Learning Team.

Write a case brief using the IRAC method.

Write an explanation of no more than 150-250 words about how the legal concepts in the selected case can be applied within a business managerial setting.

_1446490567/workers compensation case

Supreme Court of Florida
____________

No. SC03-630
____________

TRAVELERS INDEMNITY COMPANY,
Appellant,

vs.

PCR INCORPORATED, et al.,
Appellees.

[December 9, 2004]

BELL, J.

In Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000), we reaffirmed the

existence of an intentional-tort exception to the otherwise exclusive nature of the

statutory remedy provided by the Workers’ Compensation Law. Under the

intentional-tort exception, an injured employee can avoid the exclusive-remedy

provision of the Workers’ Compensation Law and sue his employer in tort if his

workplace injury was caused by an intentional tort committed against him by his

employer. We held in Turner that an injured employee could satisfy the

intentional-tort exception either by demonstrating that his employer actually

– 2 –

intended to injure him or by demonstrating that his employer engaged in conduct

that was objectively substantially certain to result in injury.1

The question presented in this case, by way of two questions of Florida law

certified by the United States Court of Appeals for the Eleventh Circuit,2 is

whether an employer’s liability insurance policy that provides coverage for

liability arising from work-related accidental injuries, but excludes from coverage

liability arising from injuries intentionally caused by the employer, provides

coverage for a tort claim brought under the objectively-substantially-certain prong

of the Workers’ Compensation Law’s intentional-tort exception. We answer this

question in the affirmative. Furthermore, we hold that such insurance coverage

does not offend, and is not prohibited by, public policy.

I. BACKGROUND

This case arises out of a 1991 explosion at PCR’s chemical plant that killed

Paul Turner and seriously injured James Creighton, both of whom were employed

by PCR as chemical technicians. See Travelers Indem. Co. v. PCR, Inc., 326 F.3d

1190, 1191 (11th Cir. 2003); Turner v. PCR, Inc., 754 So. 2d 683, 684-86 (Fla.

2000) (describing the facts surrounding the explosion). In Turner, we addressed

1. The latter method of satisfying the intentional-tort exception has now

been modified by the Legislature. See infra note 5.

2. See Travelers Indem. Co. v. PCR, Inc., 326 F.3d 1190, 1194 (11th Cir.

2003). We have jurisdiction under article V, section 3(b)(6), Florida Constitution.

– 3 –

the propriety of the tort suits brought against PCR by the injured employees and

held that the trial court erred in granting summary judgment in favor of PCR. 754

So. 2d at 691. The issue in this case, on the other hand, is whether Travelers

Indemnity Company, the insurer that issued PCR its employer’s liability insurance

policy (in conjunction with a workers’ compensation insurance policy3), is

obligated under that policy to defend and indemnify PCR in the underlying tort

suits. Travelers Indem. Co., 326 F.3d at 1191-92.

A. The Underlying Tort Suits

After the explosion, Turner’s wife and Creighton both sued PCR. Turner’s

wife, as the personal representative of Turner’s estate, brought a wrongful-death

action, and Creighton brought a personal-injury action. PCR moved for summary

judgment on the ground that it was immune from suit under the exclusive-remedy

provision of the Workers’ Compensation Law. 4 The trial court granted summary

judgment in favor of PCR on this ground, and the district court affirmed. Turner v.

PCR, Inc., 732 So. 2d 342 (Fla. 1st DCA 1998), quashed, 754 So. 2d 683 (Fla.

2000).

3. See infra note 7.

4. The Workers’ Compensation Law is codified in chapter 440, Florida

Statutes. Section 440.11, the exclusive-remedy provision, provides that the
liability of the employer for the benefits prescribed under the Workers’
Compensation Law “shall be exclusive and in place of all other liability . . . of such
employer to . . . the employee.” § 440.11(1), Fla. Stat. (2003).

– 4 –

We quashed the district court’s decision and held that PCR was not entitled

to summary judgment on its exclusive-remedy defense. Turner, 754 So. 2d at 684.

We began by noting that our case law already recognized that the exclusive-

remedy provision of the Workers’ Compensation Law did not bar an injured

employee from suing his employer in tort if the employee could demonstrate that

his injury was the result of an intentional tort committed against him by his

employer. Id. at 686-87 (citing Eller v. Shova, 630 So. 2d 537 (Fla. 1993); Fisher

v. Shenandoah Gen. Constr. Co., 498 So. 2d 882 (Fla. 1986); and Lawton v. Alpine

Engineered Prods., Inc., 498 So. 2d 879 (Fla. 1986)). We also noted that our case

law had recognized two alternative methods for satisfying the intentional-tort

exception. An injured employee seeking to avoid the exclusive-remedy provision

of the Workers’ Compensation Law and sue his employer in tort could do so, of

course, by demonstrating that his employer “exhibited a deliberate intent to injure”

him. Turner, 754 So. 2d at 687 (quoting Fisher, 498 So. 2d at 883) (alteration

omitted). Alternatively, an injured employee could satisfy the intentional-tort

exception by demonstrating that his employer “engaged in conduct which [was]

substantially certain to result in injury or death.” Id. at 687 (quoting Fisher, 498

So. 2d at 883) (alteration omitted).

In Turner, however, we went one step further. We held that the latter

method of satisfying the intentional-tort exception, the substantial-certainty

– 5 –

method, calls for an objective inquiry: the relevant question is not whether the

employer actually knew that its conduct was substantially certain to result in injury

or death but, rather, whether the employer should have known that its conduct was

substantially certain to result in injury or death. 754 So. 2d at 688. Accordingly,

we held that under the substantial-certainty method of satisfying the intentional-

tort exception, “the employer’s actual intent is not controlling.” Id. Rather, this

method requires a court to look to the totality of the circumstances “to determine

whether a reasonable person would understand that the employer’s conduct was

substantially certain to result in injury or death to the employee.” Id. (internal

quotation marks omitted).5 Applying this standard, we held that PCR was not

5. In 2003, the Legislature codified the intentional-tort exception and, in

doing so, modified the standard announced in Turner. See ch. 2003-412, § 14, at
3890-91, Laws of Fla. Under the current version of section 440.11, an injured
employee can satisfy the intentional tort-exception, and thereby avoid the
exclusive-remedy provision of section 440.11(1), only by proving by clear and
convincing evidence that his employer “deliberately intended to injure him” or that
his employer

engaged in conduct that the employer knew, based on prior similar
accidents or on explicit warnings specifically identifying a known
danger, was virtually certain to result in injury or death to the
employee, and the employee was not aware of the risk because the
danger was not apparent and the employer deliberately concealed or
misrepresented the danger so as to prevent the employee from
exercising informed judgment about whether to perform the work.

§ 440.11(1)(b)(2), Fla. Stat. (2003).

– 6 –

This newly enacted, virtual-certainty standard is similar to the standard

adopted by the New Jersey Supreme Court in Millison v. E. I. duPont de Nemours
& Co., 501 A.2d 505 (N.J. 1985). In Turner, we considered the deliberate-intent
standard and the objectively-substantially-certain standard to be “alternative bases”
for satisfying the intentional-tort exception. 754 So. 2d at 687; see also id. at 688
(adopting an objective approach to the substantial-certainty test because under a
subjective approach “there would actually be no alternative basis for recovery
against an employer”); id. at 689 (“Because it is apparent that adoption of a
subjective analysis would result in the virtual elimination of the alternative test for
liability set out in Fisher, we conclude that adoption of an objective standard is
more in accord with the policy of the alternative test we adopted in Fisher.”)
(footnote omitted). In Millison, on the other hand, the New Jersey Supreme Court
adopted a much stricter test, 501 A.2d at 514 (“We must demand a virtual
certainty.”), which it perceived “not so much as a substantive test itself nor as a
substitute for a subjective desire to injure, [but instead] as a specie of evidence that
will satisfy the requirement . . . that ‘deliberate intention’ be shown.” Id. We must
keep in mind, when determining whether the claims brought against PCR in this
case are covered by the employer’s liability policy at issue here, that those claims
are being brought not under the newly enacted virtual-certainty standard but under
the much more liberal standard announced in Turner.

The strictness of the Millison standard (and its similarity to Florida’s newly

enacted, virtual-certainty standard) was revealed not only by the New Jersey
Supreme Court’s articulation, but also by its application of the standard. Millison
held that the employees’ claim that their employer knowingly allowed them to be
exposed to asbestos and concealed from them the known dangers of such exposure
“c[a]me up short of the ‘substantial certainty’ needed to find an intentional wrong
resulting in avoidance of the exclusive-remedy bar of the compensation statute.”
501 A.2d at 514-15. By contrast, the court held that the employees’ second claim
did meet the standard. That claim alleged that the employer (through workplace
physical examinations performed by company doctors) learned that the employees
were suffering from asbestos-related diseases and fraudulently concealed this fact
from the employees. Id. at 516 (“These allegations go well beyond failing to warn
of potentially-dangerous conditions or intentionally exposing workers to the risks
of disease. There is a difference between, on the one hand, tolerating in the
workplace conditions that will result in a certain number of injuries or illnesses,
and, on the other, actively misleading the employees who have already fallen
victim to those risks of the workplace. . . . Such intentionally-deceitful action goes
beyond the bargain struck by the Compensation Act.”).

– 7 –

entitled to summary judgment because genuine issues of material fact existed as to

whether its conduct had been objectively substantially certain to cause injury or

death. Id. at 691.6

B. The Employer’s Liability Insurance Policy

At the time of the explosion, PCR was insured by Travelers Indemnity

Company (Travelers) under a “Workers Compensation and Employers Liability

Policy.” As its name suggests, this was a dual-coverage policy. Part One, entitled

“Workers Compensation Insurance,” provided that Travelers would “pay promptly

when due the benefits required of [PCR] by the workers compensation law.” Part

Two, entitled “Employers Liability Insurance,” provided that Travelers would “pay

all sums [PCR] legally must pay as damages because of bodily injury to [PCR’s]

employees, provided the bodily injury is covered by this Employers Liability

Insurance.” Part Two’s coverage applied only to claims of “bodily injury by

accident . . . aris[ing] out of and in the course of the injured employee’s

employment by [PCR].” Additionally, Part Two enumerated several exclusions

6. At this point there has not yet been a finding that “the explosion in the
instant case was foreseeable and should have been anticipated,” dissenting opinion
at 41 (Quince, J.), nor that the explosion “was foreseeable, substantially certain to
occur, and should have been anticipated.” Id. at 43. Our decision in Turner simply
held that Turner and Creighton had presented sufficient evidence to preclude an
entry of summary judgment on PCR’s exclusive-remedy defense. The plaintiffs
will still have to prove these points at trial. This point is not critical to our holding,
nor to the dissent’s conclusion—the issue here is one of law: whether a Turner
claim, if proven, necessarily falls outside the coverage scope of this employer’s
liability policy—but for the sake of accuracy it is important to make this clear.

– 8 –

from coverage, one of which was that “[t]his insurance does not cover . . . bodily

injury intentionally caused or aggravated by [PCR]. ”7

After our decision in Turner, Travelers brought a declaratory-judgment

action in the federal district court to determine whether it was obligated under Part

Two of the Workers Compensation and Employers Liability Policy to defend or

indemnify PCR against the claims brought by PCR’s injured employees in the

underlying tort suits. The district court granted summary judgment in favor of

PCR, holding that the claims in the underlying tort suits were covered by the policy

7. The circumstances under which PCR could become obligated to pay
damages (other than the statutorily mandated workers’ compensation benefits) to
injured employees will, of course, be limited. In most cases, the benefits provided
under the Workers’ Compensation Law will be the injured employee’s exclusive
remedy. Courts and commentators have noted, however, that, as here, a workers’
compensation insurance policy often is issued together with an employer’s liability
insurance policy, with the latter “intended to serve as a ‘gap-filler,’ providing
protection to the employer in those situations where the employee has a right to
bring a tort action despite the provisions of the workers’ compensation statute.”
Producers Dairy Delivery Co. v. Sentry Ins. Co., 718 P.2d 920, 927 (Cal. 1986);
see also Ottumwa Hous. Auth. v. State Farm Fire & Cas. Co., 495 N.W.2d 723,
728-29 (Iowa 1993) (quoting 7B John Alan Appleman, Insurance Law and Practice
§ 4571, at 2 (Walter F. Berdal ed. 1979)).

The dissenting opinions, however, do not account for this. PCR recognized

that, despite the provisions of the Workers’ Compensation Law, a risk still
remained that it could be held liable in tort for damages to its injured employees.
To address this risk, PCR purchased the employer’s liability insurance policy. The
dissenting opinions, however, would largely (though not completely) nullify the
effect of the policy. Rather than construing the employer’s liability policy as a
“gap filler” for situations where the Workers’ Compensation Law’s usual
exclusive-remedy rule does not apply, the dissenting opinions conclude,
completely to the contrary, that because the Workers’ Compensation Law does not
bar the underlying tort suits, the employer’s liability policy does not apply.

– 9 –

because the injury-intentionally -caused exclusion applied only if the insured

specifically intended to cause injury. See Travelers Indem. Co., 326 F.3d at 1192.

On appeal, the federal court of appeals was unsure how Florida law would interpret

the policy. The court recognized that two of Florida’s district courts of appeal had

interpreted identical exclusionary clauses to apply only when the insured acted

with the specific intent to cause injury. Id. at 1193-94 (citing Cloud v. Shelby Mut.

Ins. Co., 248 So. 2d 217 (Fla. 3d DCA 1971), and Phoenix Ins. Co. v. Helton, 298

So. 2d 177 (Fla. 1st DCA 1974)). The court, however, was unsure whether our

decision in Turner affected this line of cases. The court noted that if Cloud and

Helton controlled, “Travelers could remain liable for what might be interpreted

[under Turner] as PCR’s ‘intentional’ torts if the torts were committed without

specific intent to cause injury to the employees.” Id. at 1194. Because “[t]he law

of Florida on point seem[ed] debatable,” the court certified the following

questions:

1. Does Florida insurance law require a reading of specific intent into
an insurance clause excepting from liability coverage “[b]odily injury
intentionally caused or aggravated” by the insured?

2. Is PCR in this case entitled to liability coverage based on the
language of this policy agreement, read in the light of Florida’s law of
interpreting insurance policies?

Id.

II. DISCUSSION

– 10 –

This case raises two separate issues. The first issue is one of contract

interpretation. Does the insurance policy, properly interpreted, extend coverage to

the claims brought against PCR in the underlying tort suits. Specifically, does an

employer’s liability insurance policy, which provides coverage for “bodily injury

by accident” and excludes from coverage “injur[ies] intentionally caused” by the

insured, extend coverage to a claim brought under Turner’s objectively-

substantially -certain standard, where the injured employee does not allege that the

employer actually intended to cause injury. We answer this question in the

affirmative. The second issue is one of public policy. Does public policy prohibit

an employer from insuring against the risk of liability arising under Turner’s

objectively-substantially-certain standard. We answer this question in the

negative. We will address each of these issues below.

A. Interpreting the Policy

We must begin by looking to the language of the policy. If the language

used in an insurance policy is plain and unambiguous, a court must interpret the

policy in accordance with the plain meaning of the language used so as to give

effect to the policy as it was written. See Swire Pac. Holdings, Inc. v. Zurich Ins.

Co., 845 So. 2d 161, 165 (Fla. 2003); Siegle v. Progressive Consumers Ins. Co.,

819 So. 2d 732, 735 (Fla. 2002). Policy language is considered to be ambiguous,

however, if the language “is susceptible to more than one reasonable interpretation,

– 11 –

one providing coverage and the other limiting coverage.” Swire Pac. Holdings,

845 So. 2d at 165 (quoting Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34

(Fla. 2000) (brackets omitted)). When language in an insurance policy is

ambiguous, a court will resolve the ambiguity in favor of the insured by adopting

the reasonable interpretation of the policy’s language that provides coverage as

opposed to the reasonable interpretation that would limit coverage. Swire Pac.

Holdings, 845 So. 2d at 165; Auto-Owners Ins. Co., 756 So. 2d at 34.

1. The Coverage Clause

The parties contest the interpretation of two separate clauses of the policy:

the coverage clause and the injury-intentionally-caused exclusionary clause. We

begin by analyzing the coverage clause. The policy’s coverage clause provides

that the policy, under which Travelers agrees to “pay all sums [PCR] legally must

pay as damages because of bodily injury to [PCR’s] employees,” applies only to

“bodily injury by accident . . . aris[ing] out of and in the course of the injured

employee’s employment by [PCR].” The question is whether a claim brought

against PCR by an injured employee under Turner’s objectively-substantially-

certain standard constitutes a claim for “bodily injury by accident.” Travelers

argues that such a cla im, brought as it is under the intentional-tort exception to the

exclusive-remedy provision of the Workers’ Compensation Law, even if brought

under the objectively-substantially-certain prong of the intentional-tort exception

– 12 –

rather than the deliberate-intent prong, cannot be considered to be a claim for

bodily injury by accident.

Travelers finds support for this argument in the reasoning we employed in

Turner. We noted in Turner that “workers’ compensation is the exclusive remedy

for ‘accidental injury or death arising out of work performed in the course and the

scope of employment.’” 754 So. 2d at 686 (quoting § 440.09(1), Fla. Stat. (1997))

(emphasis added). Even though the exclusive-remedy provision did not provide

explicitly for an intentional-tort exception, we were able to conclude that such an

exception was implicit in the bargain struck by the Workers’ Compensation Law.

We took this reasoning a step further in determining that an injured employee

could satisfy the intentional-tort exception not only by demonstrating that his

employer actually intended to injure him, but also by demonstrating that his injury

was caused by employer conduct that was objectively substantially certain to cause

injury. Noting that the statute defined “accident” as “only an unexpected or

unusual event or result,” we concluded that “under the plain language of the

statute, it would appear logical to conclude that if a circumstance is substantially

certain to produce injury or death, it cannot reasonably be said that the result is

‘unexpected’ or ‘unusual.’” Turner, 754 So. 2d at 689 (emphasis omitted). Such a

result, therefore, could not be considered accidental and was not subject to the

exclusive-remedy provision of the Workers’ Compensation Law.

– 13 –

Simply put, Travelers’ argument is this: (1) the employer’s liability policy

covers only claims for bodily injury by accident; (2) if these underlying claims

were claims for bodily injury by accident, they would be barred by the exclusive-

remedy provision of the Workers’ Compensation Law—the only reason such

claims were allowed to proceed under Turner was because we concluded that they

could not be considered to be claims for bodily injury by accident; therefore, (3)

these underlying claims, by virtue of the fact that they are not barred by the

exclusive-remedy provision, are not claims for “bodily injury by accident” and are

not covered by the policy.

This argument certainly presents a reasonable interpretation of the policy’s

coverage clause, and it is, essentially, the conclusion adopted by the two dissenting

opinions. But it is not an interpretation that flows necessarily from the clause’s

plain language; nor is it the only reasonable interpretation of the clause.8 The

8. Contrast with Humana Workers’ Compensation Services v. Home

Emergency Services, 842 So. 2d 778 (Fla. 2003), where we held that a claim of
negligent spoliation of evidence “plainly” did not constitute a claim for “bodily
injury by accident” because the “accident” was the spoliation of evidence—an
accident that did not result in bodily injury. The issue in this case easily is
distinguishable from the issue in Humana. In Humana, we were interpreting the
“bodily injury” portion of the coverage clause. It was clear and unambiguous that
a claim of negligent loss of evidence, which resulted in the employee being unable
to pursue a claim against a third party, was not a claim for “bodily injury by
accident.” Here, on the other hand, we must construe the “by accident” portion of
the coverage clause. There is no question that the underlying tort suits present
claims of “bodily injury”; the question is whether the bodily injury, which
allegedly was caused by emplo yer conduct that was objectively substantially

– 14 –

policy does not define the term “accident,” and Travelers’ argument relies on the

importation of our reasoning in Turner and the definition of “accident” employed

there. The flaw in this argument, however, is that in Turner we employed

principles of tort law to interpret the Workers’ Compensation Law. Here, on the

other hand, we are called upon to interpret an insurance policy. In Prudential

Property & Casualty Insurance Co. v. Swindal, 622 So. 2d 467 (Fla. 1993), in the

context of interpreting an intentional-injury exclusion in a homeowners’ insurance

policy, we held:

Florida has long followed the general rule that tort law
principles do not control judicial construction of insurance contracts.
Insurance contracts are construed in accordance with the plain
language of the policies as bargained for by the parties. Ambiguities
are interpreted liberally in favor of the insured and strictly against the
insurer who prepared the policy. Thus, intentional act exclusions are
limited to the express terms of the policies and do not exclude
coverage for injuries more broadly deemed under tort law principles
to be consequences flowing from the insured’s intentional acts.

certain (although not actually intended) to result in injury, was or was not “bodily
injury by accident.” This cannot be answered simply by looking to the language of
the policy and applying its plain meaning, and neither party’s argument suggests
such an approach. Travelers argues, and the dissenting opinions conclude, that we
should interpret the phrase “by accident” in the same way that we interpreted that
phrase in the workers’ compensation context. PCR argues, and we agree, that we
should interpret the phrase more narrowly, in accordance with settled principles of
insurance policy interpretation.

– 15 –

622 So. 2d at 470 (citations omitted). The same principle applies here. 9 We must

interpret the phrase “bodily injury by accident,” as used in this insurance policy,

“in accordance with the plain language of the polic[y] as bargained for by the

parties.” Id. If the policy’s language is not plain—if it “is susceptible to more than

one reasonable interpretation, one providing coverage and the other limiting

coverage,” Swire Pac. Holdings, 845 So. 2d at 165 (quoting Auto-Owners Ins., 756

So. 2d at 34) (brackets omitted)—we must resolve the ambiguity and interpret the

language “ liberally in favor of the insured and strictly against the insurer who

prepared the policy.” Swindal, 622 So. 2d at 470. In other words, the coverage

clause must be interpreted in accordance with our general principles of insurance

policy interpretation. We cannot limit the scope of the term “accident” (when not

9. This is not to say that we must interpret the insurance policy in a vacuum.

This is a workers’ compensation and employer’s liability insurance policy,
protecting an employer against the risk of both workers’ compensation liability and
tort liability, and, since it is such a policy, it would make little sense not to interpret
it with reference to the circumstances under which the parties entered into the
contractual agreement. See supra note 7. But interpreting the policy language
(particularly when that language, on its face, is ambiguous) with reference to the
reasons which motivated the parties to make the contract is not the same as
interpreting terms in the policy language identically to the way those terms have
been interpreted in different contexts. This is especially so where, as here, such
interpretations would actually undermine what was most likely the parties’ intent
in making the contract.

– 16 –

defined in the policy) narrowly to cover only those circumstances deemed

“accidental” under principles of tort law or workers’ compensation law.10

Our decision in Turner rested squarely on tort law principles. In adopting an

objective substantial-certainty test, we relied on Spivey v. Battaglia, 258 So. 2d

815 (Fla. 1972), which itself relied on the Restatement of Torts, for the proposition

10. Numerous courts have recognized this principle : that there is not, as
Justice Wells contends, “an unreasonable, irreconcilable inconsistency,” see
dissenting opinion at 35, in reaching differing conclusions as to whether an injury
was “accidental” for workers’ compensation purposes and whether it was
“accidental” for liability insurance purposes. See, e.g., Royal Indem. Co. v.
Soneco/Northeastern, Inc., 183 F. Supp. 2d 526, 531 (D. Conn. 2002) (“[T]he
critical inquiry is not whether the allegations against the employer will withstand
scrutiny under [Connecticut’s version of Turner] so as to avoid the workers’
compensation bar, but rather whether the allegations fall within the language of the
policy’s exclusion.”); Ott v. LPK Systems, Inc., 812 So. 2d 38, 42 (La. Ct. App.
2001) (“[T]he inquiry into whether injuries are ‘intended or expected’ by an
insured under the terms of an insurance contract differs from the inquiry into
whether an act is ‘intentional’ under the worker’s compensation statute’s
intentional acts exception to a co-employee’s tort immunity.”); Cavalier Mfg. Co.
v. Employers Ins. of Wausau, 564 N.W.2d 68, 70-71 (Mich. Ct. App. 1997) (“[W]e
must determine not whether an employee’s allegations successfully avoid the
exclusive remedy provision of [Michigan’s Worker’s Disability Compensation Act
(WDCA)] . . . but whether those allegations are comprehended by a particular
insurance policy. . . . The [Michigan] Supreme Court’s interpretation of statutory
language contained in the WDCA has no bearing on the language contained in
[the] insurance policy.”). But see Travelers Ins. Co. v. Noble Oil Servs., Inc., 42
F.3d 1386 (4th Cir. 1994) (unpublished opinion) (“Determining whether
Matthews’ complaint alleges that Noble intentionally caused his injuries requires a
brief review of the workers’ compensation laws of North Carolina. . . . ‘[I]n order
to allege a cause of action under Woodson[ v. Rowland, 407 S.E. 2d 222 (N.C.
1991) (North Carolina’s version of Turner)] and circumvent the workers’
compensation law the plaintiff must necessarily allege that the injury as well as the
act was intentional. ’ Because the Matthews state court complaint effectively
alleges that Noble intended Matthews’ injuries, the Matthews action falls squarely
within the scope of the intentional injury exclusion.” (citation omitted)).

– 17 –

that “[w]here a reasonable man would believe that a particular result was

substantially certain to follow, he will be held in the eyes of the law as though he

had intended it.” Id. at 817 (first emphasis added). Based on this tort law

principle, we held that an injury would not be considered “accidental, ” and an

injured employee therefore could satisfy the intentional-tort exception, if his injury

resulted from employer conduct that was objectively substantially certain to result

in injury. Importantly, under this standard the employer need not have known that

its conduct was substantially certain to cause injury; the fact that it should have

known of the substantial certainty of injury would be sufficient to negate the

“unexpectedness” or “unusualness” of any resulting injury, regardless of whether

the injury truly was unexpected by the employer. 11 Nothing in the insurance

policy, however, suggests that the “by accident” coverage clause should be

construed in this narrow sense.12

11. One prominent criticism of the adoption of a substantial-certainty

standard is the fact that such a standard relies on principles of tort law to interpret a
provision of the workers’ compensation law. See, e.g., 2 Arthur Larson, Larson’s
Workers’ Compensation, § 103.03 (desk ed. 2004) (criticizing use of tort-based,
substantial-certainty tests because “[e]xclusiveness is a compensation law questio n,
not a tort law question”) (emphasis added); id. § 103.04[4] (“[T]he efforts to
stretch the concept of intentional injury are not undertaken in the name of
discovering a truer and higher meaning of ‘intentional’; they are undertaken
because these courts still cannot quite accept the non-fault nature of workers’
compensation and have taken it upon themselves to change the statutory scheme to
conform more closely to their values.”).

12. It certainly cannot be said that such a construction flows from the pla in
meaning of the policy’s language. See, e.g., Webster’s Third New International

– 18 –

In support of its argument that we should interpret the “by accident”

coverage clause in accordance with our reasoning in Turner, Travelers points to

our decision in State Farm Fire & Casualty Co. v. CTC Development Corp., 720

So. 2d 1072 (Fla. 1998). In CTC Development, we had to interpret the coverage

clause of a building contractor’s business liability insurance policy. The policy

covered “[t]hose sums that the insured becomes legally obligated to pay as

damages because of . . . property damage . . . caused by an occurrence.” Id. at

1073 (emphasis omitted). The policy defined “an occurrence” as “[a]n accident.”

Id. The case arose after CTC Development (CTC), the insured building contractor,

was sued by the neighbors of the clients for whom it was building a house. The

neighbors sued CTC for building the house in violation of restrictive covenants

that required the house to be built at a fifteen-foot setback. CTC admitted that it

Dictionary 11 (1981) (defining “accident” as, among other things, “an event or
condition occurring by chance or arising from unknown or remote causes”; “lack
of intention or necessity: chance—often opposed to design”; “an unforeseen
unplanned event or condition”; “a . . . sudden event or change occurring without
intent or volition through carelessness, unawareness, ignorance, or a combination
of causes and producing an unfortunate result”); id. (listing one definition of
“accidental” as “happening or ensuing without design, intent, or obvious
motivation or through inattention or carelessness”); see also 2 Arthur Larson,
Larson’s Workers’ Compensation, § 103.03 (desk ed. 2004) (discussing proper
interpretation of workers’ compensation laws and “the narrow issue of the
intentional versus accidental quality of the precise event producing injury”: “The
intentional removal of a safety device or toleration of a dangerous condition may
or may not set the stage for an accidental injury later. But in any normal use of the
words, it cannot be said, if such an injury does happen, that this was deliberate
infliction of harm comparable to an intentional left jab to the chin.”).

– 19 –

knowingly built the house beyond the fifteen-foot setback but asserted that it did so

only on the mistaken belief that its variance request had been approved.

The question in CTC Development was whether the damages resulting from

CTC’s setback violation were caused by “an accident.” If so, they were covered

by the policy; if not, they were not. State Farm, the insurer, argued that the case

was controlled by our earlier decision in Hardware Mutual Casualty Co. v. Gerrits,

65 So. 2d 69 (Fla. 1953), a case involving remarkably similar facts. We held in

Gerrits that the construction of a home over the property line was not “an accident”

within the meaning of the policy (which left the term undefined) because the

builder had “deliberately and designedly (although erroneously) located the

building on a part of the adjoining property and he intended to build it at that

particular site.” CTC Development, 720 So. 2d at 1074 (quoting Gerrits, 65 So. 2d

at 71). Gerrits relied on the principle that “[a]n effect which is the natural and

probable consequence of an act or course of action is not an accident.” Id. (quoting

Gerrits, 65 So. 2d at 70) (emphasis omitted). Gerrits reasoned that it did not matter

whether the builder intended or expected the result because the result was the

natural and probable consequence of its deliberate act. Id.

In CTC Development, we rejected Gerrits’ reasoning. Gerrits erred, we

held, in importing the tort law principle of “natural and probable consequences”

into the context of insurance policy interpretation. Id. (“Florida law has long

– 20 –

followed the general rule that tort law principles do not control judicial

construction of insurance contracts.”) (quoting Swindal, 622 So. 2d at 470).

Interpreting the term “accident,” which the policy left undefined, in accordance

with the principles of insurance policy interpretation rather than tort law, we held

that the policy in CTC Development covered “not only ‘accidental events,’ [i.e.,

accidental or unwilled acts,] but also damages or injuries that are neither expected

nor intended from the viewpoint of the insured.” Id. at 1072. This, we held, was

the proper definition of “the term ‘accident’ in a[ny] liability policy [in which the

term] is not defined.” Id. at 1076.

Travelers argues that we should apply the CTC Development definition of

“accident” to the “by accident” coverage clause at issue here. If we were to apply

this definition, Travelers argues, the policy could not be interpreted to extend

coverage to the injured employees’ Turner claims. Travelers’ argument, however,

is unpersuasive. Assuming that we should use the CTC Development definition in

interpreting this policy, the result still would not support Travelers’ argument that a

claim brought under Turner’s objectively-substantially-certain standard, by

definition and as a matter of law, cannot be considered a claim for “bodily injury

by accident” and, therefore, necessarily falls outside the scope of the policy’s

– 21 –

coverage clause.13 The flaw in this argument is that the CTC Development

definition evaluated intent or expectation from the insured’s subjective point of

view. 720 So. 2d at 1072. CTC Development extended the scope of the term

“accident” to include not only damages resulting from unintentional or accidental

acts, but also to include damages resulting from intentional or volitional acts as

long as the insured actor neither intended nor expected the resulting damages. To

satisfy the objectively-substantially-certain standard of Turner, on the other hand,

an injured employee need not prove that his or her employer actually expected that

its conduct would result in injury. Rather, under Turner, an injured employee only

13. In any event, despite our statements to the contrary in CTC
Development, it is not clear why the definition of “accident” employed there
should apply here. The policy at issue there included an exclusionary clause
materially different than the exclusionary clause in the present policy. The policy
in CTC Development included a clause that excluded from coverage “property
damage . . . expected or intended from the standpoint of the insured.” 720 So. 2d
at 1073 (emphasis omitted). In defining the term “accident” in the coverage
clause, we looked to the scope of the exclusionary clause on the ground that all
“pertinent provisions [of the policy] should be read in pari materia.” Id. at 1075
(quoting Nationwide Mut. Fire Ins. Co. v. Olah, 662 So. 2d 980, 982 (Fla. 2d DCA
1995)); see also 2 Eric Mills Holmes, Holmes’s Appleman on Insurance, § 5.3, at
64-64 (2d ed. 1998). Applying this principle of insurance policy interpretation, we
concluded that “[r]eading the coverage provision of the policy together with the
exclusionary clause could support a conclusion that coverage is provided in the . . .
policy for occurrences where the insured did not intend or expect to cause harm to
the third party.” Id. If we were to apply the same principle here in interpreting the
present policy, which contains a more narrowly drawn exclusionary clause
(excluding from coverage “bodily injury intentionally caused . . . by [PCR]” as
opposed to excluding injuries intended or expected by PCR), our definition of the
term “accident” in the coverage clause probably would be correspondingly more
broad. Determining whether this is so requires us to address the second point of
contention between the parties: the proper interpretation of the exclusionary clause.

– 22 –

needs to demonstrate that his or her employer should have expected that injury

would result. Turner, 754 So. 2d at 688-89. At the least, therefore, the policy’s

“by accident” coverage clause, if interpreted in accordance with our CTC

Development definition, would provide coverage for a Turner claim unless the

injured employee demonstrated that the insured employer actually expected (with

expectation measured to the degree of substantial certainty) that its conduct would

result in injury. Interpreting the coverage clause in this way probably would

preclude coverage of a claim brought under the newly enacted, virtual-certainty

standard, but it does not, as a matter of law, preclude coverage under the more

liberal, objectively-substantially-certain standard articulated in Turner.14

2. The Exclusionary Clause

The next point of contention between the parties involves the proper

interpretation of the exclusionary clause. The parties’ respective arguments on this

issue essentially are identical to their arguments on the coverage-clause issue.

Travelers argues that any claim brought under the intentional-tort exception, by

definition, must be excluded under an injury-intentionally-caused exclusionary

clause. More precisely, Travelers argues that Turner rested on the notion that

intent to injure would be imputed by law to conduct that was objectively

substantially certain to cause injury; otherwise, Travelers contends, such conduct

14. See supra note 5.

– 23 –

would not satisfy the intentional-tort exception. See Turner, 754 So. 2d at 691

(“This [objectively substantially certain] standard imputes intent upon employers

in circumstances where injury or death is objectively substantially certain to

occur.”) (internal quote marks omitted). As it did in response to Travelers’

coverage-clause arguments, PCR contends that Travelers again seeks improperly to

interpret an insurance policy in accordance with tort law principles. Again, we

conclude that PCR is correct. In order for this particular exclusionary clause to

apply, the insured must have acted with the specific intent to cause injury.

We begin by noting, as we did above, that “tort law principles do not control

judicial construction of insurance contracts.” Swindal, 622 So. 2d at 470. In

holding that this exclusionary clause applied only if the insured acted with the

specific intent to injure, the federal district court relied on two decisions of

Florida’s district courts of appeal. The first case was Cloud v. Shelby Mutual

Insurance Co., 248 So. 2d 217 (Fla. 3d DCA 1971), in which the Third District

Court of Appeal interpreted an injury-intentionally-caused exclus ionary clause in

an automobile liability insurance policy. Cloud, the insured, “impatiently sought

to push out of his way a car blocking him in a driveway. His bumper overrode the

bumper of the car ahead, and seriously injured . . . a passenger in the pushed car.”

Id. at 217-18. Cloud’s insurer argued that it was not obligated under the insurance

policy to defend Cloud in the suit brought against Cloud by the injured passenger,

– 24 –

arguing that the claim was excluded from coverage under the injury-intentionally-

caused exclusionary clause (excluding from coverage “bodily injury or property

damage caused intentionally by or at the direction of the insured”). Id. at 218. The

parties stipulated that Cloud “intentionally push[ed]” the car but did not

“intentionally cause” the injuries to the car’s passenger. Id. The district court

concluded that under such a clause “coverage is not excluded as a matter of law

where there was an ‘intentional act’ but not an ‘intentionally caused’ injury.” Id.

(citing W.E. Merritt III, Annotation, Liability Insurance: Specific Exclusion of

Liability for Injury Intentionally Caused by Insured, 2 A.L.R. 3d 1238 (1965)).

The court adopted the rule that

injury or damage is “caused intentionally” within the meaning of an
“intentional injury exclusion clause” if the insured has acted with the
specific intent to cause harm to a third party, with the result that the
insurer will not be relieved of its obligations under a liability policy
containing such an exclusion unless the insured has acted with such
specific intent.

Id. (quoting 44 Am. Jur. 2d, Insurance, § 1411, at 259). The other case relied on

by the federal district court was Phoenix Insurance Co. v. Helton, 298 So. 2d 177

(Fla. 1st DCA 1974), in which the First District Court of Appeal followed Cloud.

298 So. 2d at 180-82.

Travelers does not dispute the authority of Cloud and Helton. Rather,

Travelers argues that a Turner claim is more appropriately analyzed under our

decision in Landis v. Allstate Insurance Co., 546 So. 2d 1051 (Fla. 1989). Relying

– 25 –

on Landis, Travelers argues that the law should impute intent to injure in cases

where the insured’s conduct was substantially certain to result in injury. Landis ,

however, does not support this argument.

In Landis , an insured who was being sued for sexually molesting several

children sought coverage under his homeowner’s insurance policy. The insured

argued that the policy’s injury-intentionally-caused exclusionary clause did not

apply because he had not “specifically intended” to cause harm. Id. at 1053. We

rejected this argument because “[t]o state that a child molester intends anything but

harm . . . to the child defies logic.” Id. “[S]ome form of harm inheres in and

inevitably flows from the proscribed behavior.” Id. (quoting Zordan v. Page, 500

So. 2d 608, 614 (Fla. 2d DCA 1987) (Frank, J., dissenting)).

We went on to state that “specific intent to commit harm is not required by

the intentional acts exclusion. Rather, all intentional acts are properly excluded by

the express language of the homeowners policy.” Id. This statement caused

confusion, and in Swindal we made clear that

Landis in no way changed the law set forth [in Cloud and
Helton]. Landis held that an intentional injury exclusion clause
excluded coverage for injuries suffered by children who were sexually
molested while under the care of the insureds. This Court
unanimously rejected the insured’s argument that coverage should not
be excluded because the insured intended no harm, holding instead
that harm always results from child sexual abuse such that any intent
to molest necessarily carries with it an intent to harm. . . . Our
decision in Landis did not suggest that courts apply tort law causation
principles of “reasonably foreseeable ” or “natural and probable

– 26 –

consequences” in construing the intentional injury clause in insurance
contracts. Rather, we merely found that an intent to injure is inherent
in the act of sexually abusing a child.

622 So. 2d at 471-72 (citations omitted) (emphasis added). We reiterated that

Florida law has long followed the general rule that tort law
principles do not control judicial construction of insurance contracts. .
. . Thus, intentional act exclusions are limited to the express terms of
the policies and do not exclude coverage for injuries more broadly
deemed under tort law principles to be consequences flowing from the
insured’s intentional acts.

Id. at 470.

We reject Travelers’ argument that conduct satisfying Turner’s objectively-

substantially -certain standard can and should be equated, for purposes of imputing

intent to injure, with the conduct at issue in Landis .15 Our holding in Landis rested

on the uncontroversial fact that injury inheres in and inevitably flows from an act

of sexual molestation; the act and the harm cannot be separated. (Even more

important, particularly with respect to the issue of public policy, which we discuss

below, is the lack of the element of fortuity between the act and the resulting harm.

The commission of the act necessarily causes the harm. There is no element of

chance involved: one could not commit the act without causing the harm.) The

same cannot be said of conduct giving rise to a Turner claim. Indeed, in Turner we

15. The fact that such conduct is sufficient to impute intent under principles

of tort law or compensation law does not alter this conclusion. The question is
whether such conduct is sufficient to impute intent for purposes of invoking an
insurance policy’s injury-intentionally -caused exclusionary clause. See supra note
10.

– 27 –

emphasized that the substantial-certainty standard should not be interpreted to

require a showing of virtual certainty. 754 So. 2d at 687 n.4.16 We noted that the

substantial-certainty standard “require[d] a showing greater than ‘gross

negligence,’” but we suggested a similarity between a culpable -negligence

standard and the substantial-certainty standard. 754 So. 2d at 687-88 n.4. (noting

that one was “not unlike” the other).17 It is true, as Travelers notes, that the

substantial-certainty standard of Turner requires a greater level of foreseeability

than the natural and probable consequences standard at issue in Cloud and Helton.

16. The difference between the objectively -substantially-certain standard
adopted in Turner and the Legislature’s newly enacted, virtual-certainty standard is
critical. See supra note 5. In New Jersey Manufacturers Insurance Co. v. Joseph
Oat Corp., 670 A.2d 1071 (N.J. Super. Ct. App. Div. 1995), the court held that a
claim brought under New Jersey’s Millison standard, which is similar to the
Legislature’s newly enacted standard, was excluded from coverage under the
employer’s liability policy’s injury-intentionally-caused exclusion. Unlike Turner,
where we held that the objectively-substantially -certain standard created an
“alternative bas[i]s” for satisfying the intentional-tort exception, 754 So. 2d at 687,
the Millison standard did not constitute an alternative to actual intent. Joseph Oat
Corp., 670 A.2d at 1073 (“[W]e think it plain that only one type of intent is
sufficient to escape the exclusivity of the Workers’ Compensation Act and reject
the contention that the [New Jersey] Supreme Court adopted something less as an
alternative viable cause of action.”); see also id. at 1074 (“There are not . . . two
discrete categories of conduct which will satisfy the requirement of an ‘intentional
wrong’ to escape the exclusivity of workers’ compensation remedies. Both
subjective intent and substantial certainty of harm are expressive of the same
standard, i.e., deliberate intent to harm.”).

17. In Eller v. Shova, 630 So. 2d 537 (Fla. 1993), we defined “culpable

negligence” as “reckless indifference” or “grossly careless disregard” of human
life; we defined “gross negligence,” on the other hand, as “an act or omission that a
reasonable, prudent person would know is likely to result in injury to another.”
Turner, 754 So. 2d at 687 n.3 (quoting Eller, 630 So. 2d at 541 n.3).

– 28 –

But the difference here is quantitative; on the other hand, there is a qualitative

difference between these foreseeability standards and the inherency standard of

Landis .

B. Public Policy

The next issue we must address is whether public policy prohibits an

employer from insuring against the risk of liability arising under Turner’s

objectively-substantially-certain standard. In Ranger Insurance Co. v. Bal Harbour

Club, Inc., 549 So. 2d 1005 (Fla. 1989), we articulated a two-factor test for

determining “whether a particular policy of civil liability insurance is opposed to

public policy.” Id. at 1007. The first factor looks to whether the type of conduct

for which liability is imposed would be “encouraged” if one could insure against

the risk of liability arising from such conduct. Id. In other words, we ask “whether

the existence of insurance will directly stimulate commission of the wrongful act.”

Id. The second factor looks to whether the purpose served by the imposition of

liability for certain conduct is “to deter wrongdoers or compensate victims.” Id.

Applying this two-factor test, we conclude that public policy does not

prohibit an employer from insuring against the risk of liability arising under

Turner’s objectively-substantially-certain standard. With respect to the first factor,

it is instructive to compare the type of conduct at issue in Bal Harbour with the

type of conduct that will subject an employer to tort liability under Turner. The

– 29 –

question in Bal Harbour was whether public policy prohibited insurance coverage

for liability arising from intentional religious discrimination. We rejected “the

supposition that making intentional religious discrimination insurable w[ould ] not

encourage such discrimination.” 549 So. 2d at 1008. The analysis would apply

equally to a claim brought under the deliberate-intent prong of the intentional-tort

exception. Both types of claims squarely implicate the rule that “one should not be

able to insure against one’s own intentional misconduct.” Id. at 1007 (citing 12

John Alan Appleman & Jean Appleman, Insurance Law and Practice, § 7031

(1981)). Where liability is not predicated on intent, however, the rule is not

implicated. See, e.g., Bal Harbour Club, 549 So. 2d at 1006 (distinguishing

between claims of intentional [or disparate treatment] discrimination and claims of

unintentional [or disparate impact] discrimination and concluding that the latter “is

clearly a legitimate business ris k and as such is insurable”); see also Harasyn v.

Normandy Metals, Inc., 551 N.E. 2d 962, 964-65 (Ohio 1990) (distinguishing

between claims brought under the direct-intent prong of Ohio ’s intentional-tort

exception and claims brought under the substantial-certainty prong and concluding

that in the case of substantial-certainty torts “the presence of insurance has less

effect on the tortfeasor’s actions because it was not the tortfeasor’s purpose to

cause the harm for which liability is imposed”).

– 30 –

The second Bal Harbour Club factor also supports the conclusion that public

policy does not prohibit an employer from insuring against the risk of liability

arising under Turner’s objectively-substantially-certain standard. Again,

comparing the conduct at issue in Bal Harbour Club and the conduct at issue here

is instructive. In Bal Harbour Club, we looked to Florida’s “long-standing policy

of opposing religious discrimination” and concluded that “the primary purpose

served by the imposition of liability for intentional acts of wrongful discrimination

is to deter wrongful discrimination.” Id. at 1008. In this respect, employer

conduct that was objectively substantially certain to cause injury, even though the

employer neither intended nor actually expected that its conduct would cause

injury, is distinguishable from an act of intentional discrimination. See Bal

Harbour Club, 549 So. 2d at 1006 (distinguishing between claims of intentional

discrimination and claims of unintentional discrimination). Bal Harbour Club

recognized that most tort liability, even liability for intentional discrimination, will

serve both deterrent and compensatory goals. 549 So. 2d at 1008. The unique

nature of intentional discrimination suggested that the primary purpose of

imposing liability for such conduct was to serve the goal of deterrence. We do not

believe the same can be said for conduct subjecting an employer to liability under

Turner’s objectively-substantially-certain standard.

– 31 –

Travelers points to our statement in Turner where we justified the adoption

of an objective substantial-certainty standard on the ground that failure to adopt

such a standard “would virtually encourage a practice of ‘willful blindness’ on the

part of employers who could ignore conditions that under an objective test would

be found to be dangerous.” 754 So. 2d at 691. Travelers argues that this statement

supports the contention that the primary purpose of imposing tort liability under

Turner is to deter employers from engaging in conduct that is objectively

substantially certain to cause injury. But this argument also would suggest that

liability imposed for negligent conduct is primarily directed at the goal of

deterrence. The truth is that the goals of deterrence and compensation generally

are so interdependent that it is difficult to separate the two and call one the primary

goal. Semantics would suggest that liability for compensatory damages primarily

is intended to advance the goal of compensation. But an equally basic aim of

imposing liability for compensatory damages resulting from negligent conduct is to

deter such conduct, i.e., to encourage actors to take efficient precautions and care

to avoid causing damages. Our statement in Turner is better understood as a

reflection of our understanding of the nature of the bargain struck by the Workers’

Compensation Law, and what types of conduct were not contemplated by the

Legislature as falling under the provisions of that bargain. See Turner, 754 So. 2d

at 691 (“This holding [adopting an objective substantial-certainty test] is also

– 32 –

consistent with legislative policy recognizing the liability of managerial or policy-

making coemployees for conduct constituting reckless indifference to the safety of

other employees.”). Turner did not upset the fundamentals of Florida insurance

law, nor did it create a new one-size-fits-all definition of “accident.” Turner

simply held that the Workers’ Compensation Law did not preclude (because, we

concluded, the give-and-take between employers and employees that the

Legislature crafted in the Workers’ Compensation Law was not intended to

preclude) an injured employee from suing his employer in tort if his injuries were

caused by employer conduct that the employer should have known was

substantially certain to cause injury.

III. CONCLUSION

We answer the two certified questions in the affirmative and hold that Part

Two of the Workers Compensation and Employers Liability Policy issued to PCR

by Travelers, which covers claims for “bodily injury by accident” and excludes

from coverage claims of “bodily injury intentionally caused . . . by [PCR],”

extends coverage to a claim brought against PCR under the objectively-

substantially -certain standard articulated in Turner.18 A claim brought under

Turner’s objectively-substantia lly-certain standard does not on its own or as a

18. Insurers, of course, remain free to craft policies explicitly limiting the
scope of a “by accident” coverage clause or broadening the scope of an
“intentional injury” exclusionary clause. Our task here was simply to interpret the
scope of those particular clauses in a policy that left the operative terms undefined.

– 33 –

matter of law fall outside the scope of this particular employer’s liability insurance

policy. Whether a claim brought under the newly enacted virtual-certainty

standard would fall outside such a policy is a different question, which we do not

answer here. We also hold that public policy does not prohibit an employer from

insuring against the risk of liability arising under Turner’s objectively-

substantially -certain standard.

It is so ordered.

PARIENTE, C.J., and ANSTEAD and LEWIS, JJ., concur.
WELLS, J., dissents with an opinion, in which QUINCE and CANTERO, JJ.,
concur.
QUINCE, J., dissents with an opinion, in which WELLS and CANTERO, JJ.,
concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

WELLS, J., dissenting.

I would restate the question certified by the Eleventh Circuit to be:19

Does the correct construction under Florida law of “PART TWO–
EMPLOYERS LIABILITY INSURANCE” of the Travelers Insurance
policy provide coverage to PCR for the claims brought by the two
PCR employees for death and injury resulting from the explosion at
the PCR chemical plant in 1991?

19. The Eleventh Circuit specifically stated: “The certified questions we

seek to pose to the Florida Supreme Court are intended by us in no way to limit the
scope of that high court’s review.” Travelers Indemnity Co. v. PCR Inc., 326 F.3d
1190, 1194 (11th Cir. 2003).

– 34 –

My answer to this rephrased question is “no.”

I reach this conclusion by beginning the analysis at the same point we began

our analysis of a similar policy in Humana Worker’s Compensation Services v.

Home Emergency Services, Inc., 842 So. 2d 778 (Fla. 2003). In Humana, we

stated.

To determine whether there is coverage, as our threshold examination
we must construe Section A of Part Two, the provision that explains
“How This Insurance Applies.” In this examination we are bound by
rules of construction which we have long applied, the foremost of
which is that insurance contracts must be construed in accordance
with their plain language. See Auto-Owners Ins. Co. v. Anderson,
756 So. 2d 29, 34 (Fla. 2000); Prudential Property & Cas. Ins. Co. v.
Swindal, 622 So. 2d 467, 470 (Fla. 1993). Applying this rule to this
coverage provision, the issue is then whether this claim for spoliation
of evidence is a claim for “bodily injury by accident.”

842 So. 2d at 781. The language of the Travelers policy is identical to the policy in

Humana in stating:

PART TWO–EMPLOYERS LIABILITY INSURANCE.

A. How This Insurance Applies

This employers liability insurance applies to bodily injury by accident
or bodily injury by disease. Bodily injury includes resulting death.

In accord with the framework we laid out for analysis of this policy, the

threshold issue here is whether these claims are “claims for bodily injury by

accident.”

On this threshold issue, I agree with Justice Quince. While I respect the

precedent of the line of Florida cases cited in the majority opinion which have

– 35 –

stated that tort law principles do not control the construction of the provisions of

insurance contracts, majority op. at 14, citing to Prudential Property & Casualty

Insurance Co. v. Swindal, 622 So. 2d 467 (Fla. 1993), I conclude that that

precedent is not applicable to this case. Rather, in this case, the principles which

must be applied in construing the provisions of the Travelers’ insurance contract

are the principles set forth in our decision in Turner v. PCR, Inc., 754 So. 2d 683

(Fla. 2000). This is because we have specifically decided whether the death and

injuries to these employees were caused by accident, and we decided that they

were not.

I conclude that it is simply an unreasonable, irreconcilable inconsistency for

this Court to hold in Turner that the employee’s death and injuries which were the

basis of the claims were not subject to workers’ compensation immunity because

the death was not caused by accident and then here to hold that the employer’s

liability coverage applies because the same employee’s death and injuries were

caused by accident. Not only were the employees the same, the explosion was the

same, and the conduct of PCR was the same. A plain language construction of the

insurance policy cannot avoid what we said in Turner about whether death and

injuries are caused by accident:

We also note, as did Justice Adkins’ dissent in [Fisher v.
Shenandoah General Construction Co., 498 So. 2d 882 (Fla. 1986),]
that section 440.09(1), Florida Statutes (1991) provides compensation
for injury by accident: “Compensation shall be payable under this

– 36 –

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.” Injury is defined in section 440.02(17),
Florida Statutes (1991) as “personal injury or death by accident
arising out of and in the course of employment.” Accident is further
defined in section 440.02(1), Florida Statutes (1991) as “only an
unexpected or unusual event or result, happening suddenly.”
Conversely, therefore, under the plain language of the statute, it would
appear logical to conclude that if a circumstance is substantially
certain to produce injury or death, it cannot reasonably be said that the
result is “unexpected” or “unusual,” and thus such an event should not
be covered under workers’ compensation immunity.

754 So. 2d at 689.

Even as esoteric and nuanced as insurance policy construction law has

become in our case law, as set out in detail by the majority, it is my view that the

law has to conform to the common sense and logic of the particular case in which

it is applied. I find it incompatible with common sense and logic to hold that the

same deaths and injuries are not caused by “an accident” for purposes of the

employer’s liability for workers’ compensation immunity from common law

liability but are caused by accident for purposes of the same employer having

common law liability which is covered by an employer’s liability insurance policy

applying only to injuries caused by accident.

Moreover, even if I could accept the foregoing inconsistency, I could not

then explain how the policy exclusion which expressly states that “[t]his insurance

does not cover bodily injury intentionally caused,” is inapplicable. Again, in

Turner, the majority opinion held:

– 37 –

In summary, we find that our prior case law recognizes, and we
reaffirm, the existence of an intentional tort exception to an
employer’s immunity. That intentional tort exception includes an
objective standard to measure whether the employed engaged in
conduct which was substantially certain to result in injury. This
standard imputes intent upon employers in circumstances where injury
or death is objectively “substantially certain” to occur.

754 So. 2d at 691. What I understand this to mean is that we use both subjective

and objective standards upon which the conduct of an employer is to be judged but

both standards are judging whether there was an intent to injure.

I conclude that the Turner intent being an intent to injure distinguishes this

situation from the Swindal decision and from Gulf Life Insurance Co. v. Nash, 97

So. 2d 4 (Fla. 1957), and Cloud v. Shelby Mutual Insurance Co., 248 So. 2d 217

(Fla. 3d DCA 1971). In Swindal, Nash, and Cloud, there was determined not to be

an intent to injure. Rather, there was intent in Swindal and Nash to create fear and

the injury was the result but not the intended result. In Cloud, the intent was to

push the car, and the injury was the result of the intent to push the car.

The present case is much closer and is analogous to Landis v. Allstate

Insurance co., 546 So.2d 1051 (Fla. 1989). In Landis , we recognized that the

intent to molest a child was an intent to injure the child. As the majority opinion

notes, the reason we so held was because “harm inheres in and inevitably flo ws

from the proscribed behavior.” Majority op. at 25. I believe this is what we found

to be the standard for intent in our Turner decision. If this is not a correct reading

– 38 –

of Turner, then Turner erringly changed what is necessary to be proven to avoid

workers’ compensation immunity. In Turner, we were applying an exception to

the immunity based upon an intent to cause injury.

In sum, I believe the analyses of our Turner case have to control this case.

Under those principles, the employer’s liability insurance of Part Two of the

Travelers’ policy does not apply. Even if the insurance did apply to theses claims,

the claims would be excluded by the “intentionally caused” exclusion.

QUINCE and CANTERO, JJ., concur.

QUINCE, J., dissenting.

I dissent from the majority’s determination that PCR’s liability insurance

policy provided coverage for this incident. It is clear that the explosion at the

PCR’s chemical plant was not an “accident.”

The policy in the instant case, titled “Workers Compensation and Employers

Liability Policy,” contains two parts. Part Two of this policy details the Employers

Liability Insurance. It provides in relevant part:

PART TWO-EMPLOYERS LIABILITY INSURANCE

A. How This Insurance Applies

This employer’s liability insurance applies to bodily injury by
accident or bodily injury by disease. Bodily injury includes
resulting death. . . .

– 39 –

B. We Will Pay

We will pay all sums you legally must pay as damages because
of bodily injury to your employees, provided the bodily injury
is covered by this Employers Liability Insurance.

The damages we will pay, where recovery is permitted by law,
include damages:
1. for which you are liable to a third party by reason of a claim
or suit against you by that third party to recover the damages
claimed against such third party as a result of injury to your
employee;
2. for care and loss of services; and
3. for consequential bodily injury to a spouse, child, parent,
brother or sister of the injured employee;
provided that these damages are the direct consequence of
bodily injury that arises out of and in the course of the injured
employee’s employment by you; and
4. because of bodily injury to your employee that arises out of
and in the course of employment, claimed against you in a
capacity other than as employer.

C. Exclusions

This insurance does not cover: . . .
5. bodily injury intentionally caused or aggravated by you.

Part Two of this policy provided coverage to PCR for bodily injury by

accident or disease. Since this case does not involve bodily injury by disease, we

must focus on the definition of bodily injury by accident in order to determine

whether PCR was covered by the policy for the incident that killed Paul Turner and

injured James Creighton. Unfortunately, the term “accident” is not defined in the

policy. Therefore, we must look outside the policy for its definition.

– 40 –

The term “accident” is defined as “[a]n unintended and unforeseen injurious

occurrence; something that does not occur in the usual course of events or that

could not be reasonably anticipated.” Black’s Law Dictionary 15 (7th ed. 1999);

see also Koikos v. Travelers Ins. Co., 849 So. 2d 263, 267 (Fla. 2003) (“We hold

that where the term ‘accident’ in a liability policy is not defined, the term, being

susceptible to varying interpretations, encompasses not only ‘accidental events,’

but also injuries or damage neither expected nor intended from the standpoint of

the insured.”); Duff Hotel Co. v. Ficara, 7 So. 2d 790, 792 (Fla. 1942) (“‘Accident’

is not a technical legal term with a well bounded meaning. In Workmen’s

Compensation it has been applied to that which happens by chance or casually, that

which proceeds from an unknown cause or the unusual which sometimes results

from known causes.”); Roberson v. United Servs. Auto. Ass’n, 330 So. 2d 745,

746 (Fla. 1st DCA 1976) (“Customarily, an accident is defined as an unexpected or

unusual event; it is something which happens by chance and without design; it is

an event from an unknown cause.”); Braley v. American Home Assurance Co., 354

So. 2d 904, 905 (Fla. 2d DCA 1978) (“The courts have repeatedly held that the

term ‘accident,’ as all other terms in an insurance policy not defined in the policy,

should be given its everyday ‘man-on-the-street’ meaning. . . . We find, then, that

the everyday man-on-the-street definition of ‘accident’ includes an unexpected

– 41 –

result.”). Since the explosion in the instant case was foreseeable and should have

been anticipated, it was not an accident.

When this case was first before this Court, Turner v. PCR, Inc., 754 So. 2d

683 (Fla. 2000), we reaffirmed our prior decisions holding that Florida Worker’s

Compensation Law, codified in chapter 440, Florida Statutes (1997), does not

provide immunity to employers who commit an intentional tort against their

employees. See 754 So. 2d at 687. Guided by Fisher v. Shenandoah General

Construction Co., 498 So. 2d 882 (Fla. 1986), Lawton v. Alpine Engineered

Products, Inc., 498 So. 2d 879 (Fla. 1986), and Eller v. Shova, 630 So. 2d 537 (Fla.

1993), we stated that “in order to prove an intentional tort, the employer must be

shown to have either ‘exhibite[d] a deliberate intent to injure or engage[d] in

conduct which is substantially certain to result in injury or death.’” 754 So. 2d at

683 (alterations in original) (quoting Fisher, 498 So. 2d at 883). Acknowledging

that PCR did not deliberately intend to injure Creighton and Turner, we focused on

the second part of this disjunctive test, i.e., whether PCR’s conduct was

substantially certain to result in injury or death. Id. at 688.

We adopted an objective standard for determining substantial certainty:

“whether a reasonable person would understand that the employer’s conduct was

‘substantially certain’ to result in injury or death to the employee.” Id. at 688-89.

We stated that “if a circumstance is substantially certain to produce injury or death,

– 42 –

it cannot reasonably be said that the result is ‘unexpected’ or ‘unusual,’ and thus

such an event would not be covered under workers’ compensation immunity.” Id.

at 689. Applying that objective test to the facts at hand, we held that there was

sufficient proof to preclude the entry of a summary judgment for PCR. Id. In so

holding, we found that there was an abundance of evidence leading to the

conclusion that PCR’s conduct was substantially certain to result in injury to its

employees:

As in Connelly, there is evidence here that PCR knew of the
highly explosive nature of TFE and the reactants, yet failed to disclose
this to its employees. Further, as in Connelly, there is evidence here
that by putting the concern for profits first, PCR ignored the safety
risks and attempted to meet Dupont’s demands by using an unsuited
existing reaction facility that lacked the proper safety instruments. In
fact, this case is arguably more egregious than Connelly and
Cunningham in that PCR knew of prior similar explosions with the
same and similar chemicals involved in the explosion at issue here,
yet chose to ignore them. . . . [T]here are allegations in this case that
PCR did not disclose the extent of the danger created by TFE of
which ICI had informed PCR in writing.

Id. at 691.

At the time of the explosion on November 22, 1991, PCR was combining

the chemicals “tetrafluoroethylene (TFE) with hexafluoropropene (HFP), in the

presence of aluminum chloride” to create F-pentene-2, a replacement for the

coolant, Freon 113. Id. at 684. PCR was aware that TFE is an extremely

dangerous chemical, for “ICI, the company that manufactures TFE, notified PCR

in April 1991, that it was planning to discontinue supplying TFE throughout the

– 43 –

United States because of its hazardous character.” Id. at 685. “TFE’s explosive

force is equal to two-thirds that of TNT, and the risk of an explosion by using TFE

in the production of F-pentene-2 is very high.” Id. at 684-85 (emphasis added).

The risk was so high, in fact, that there was “evidence of ‘at least three’ other

uncontrolled explosions at PCR in just under two years.” Id. at 685. 20

Since similar uncontrolled explosions had occurred at PCR on at least three

different occasions and since TFE was known to be a dangerous and explosive

chemical, this November 22, 1991, explosion that claimed the life of Paul Turner

and seriously injured James Creighton was foreseeable, substantially certain to

occur, and should have been anticipated. Hence, it is quite clear that this was not

an accident. Because this was not an accident, PCR was not covered under Part

Two of its Employers Liability Insurance Policy since that policy’s “coverage

applied only to claims of ‘bodily injury by accident . . . aris[ing] out of and in the

course of the injured employee’s employment by [PCR].” Majority op. at 7.

For these reasons, I dissent.

WELLS and CANTERO, JJ., concur.

20. The three explosions occurred on October 27, 1988, August 3, 1989,
and July 20, 1990. Turner, 754 So. 2d at 685.

– 44 –

Certified Question of Law from the United States Court of Appeals for the
Eleventh Circuit – Case No. 02-12829

Andrew E. Grigsby of Hinshaw and Culbertson, Miami, Florida, and Allan B.
Taylor of Day, Berry and Howard, LLP, Hartford, Connecticut,

for Appellant

John A. DeVault, III and Michael D. Whalen of Bedell, Dittmar, DeVault, Pillans,
and Coxe Professional Association, Jacksonville, Florida

for Appellee