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Travelers Indemnity Co. v. PCR Incorporated12/9/2004
& 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 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 " his insurance does not cover bodily injury intentionally caused," is inapplicable. Again, in Turner, the majority opinion held:
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 tha
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