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IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JESSICA RUSH,

Plaintiff,

v. Case No. 3:10cv436/MCR/EMT

BELLSOUTH TELECOMMUNICATIONS,

INC., d/b/a/ AT&T FLORIDA,

Defendant.

_______________________________/

O R D E R

Pending before the court is Defendant BellSouth Telecommunications, Inc.'s

("BellSouth's") motion for summary judgment, (doc. 8), which Plaintiff Jessica Rush

opposes (doc. 18). The court heard oral argument on the motion on February 1, 2011. 

Having fully considered the record and the arguments of the parties, the court concludes

that summary judgment should be DENIED. 

Background

Jessica Rush filed a petition for workers' compensation benefits with the state of

Florida on May 7, 2010, alleging "exposure to toxic mold, MRSA [methicillin-resistant

staphyloccus aureus], and other complications related to 'sick building.'" (Doc. 9-1.) She

filed a second petition for workers' compensation benefits on May 12, 2010, with the same

allegations but adding May 15, 2008, as the last date of injurious exposure. (Doc. 9-2.) 

The workers' compensation claims were consolidated. BellSouth responded to the petition

for benefits as follows:

Request for authorization of General Practitioner and attendant care are

denied as Claimant's alleged exposure . . . did not occur in the course and

scope of her employment and Claimant did not suffer an injury by accident

as defined under [Fla. Stat. § 440.02(1)]. Claimant's conditions are personal

in nature and longstanding and unrelated to her employment.
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(Doc. 9-4.) The workers compensation claims were scheduled for a final hearing before

the Judge of Compensation Claims on November 29, 2010. However, prior to the final

hearing, Rush filed a notice of voluntary dismissal without prejudice and dismissed the

case on September 29, 2010, prior to any determination on the merits of her claims. 

Rush commenced the current litigation in state court on September 28, 2010,

alleging in pertinent part that she was an employee of BellSouth; she worked in its offices

at Garden Street; the Garden Street location had become contaminated by toxic mold

and/or MRSA on or before May 7, 2007; she was exposed to the toxic mold continually

before and until May 7, 2007; and BellSouth failed to notify her that an outbreak of MRSA

had occurred at the Garden Street location. Rush further alleged that BellSouth was

negligent in its cleaning, maintenance, and operation of the Garden Street workplace; and

that this negligence caused Rush to suffer injury and resulting damages. BellSouth

removed the action to this court on October 28, 2010, on the basis of diversity jurisdiction.

In its answer, BellSouth admitted that plaintiff was an employee "at certain times relevant

to this action" but denied that she was an employee at all times referenced in the

complaint. (Doc. 2.) BellSouth now moves for summary judgment on grounds that, to the

extent Rush's injuries were caused by an on-the-job accident or toxic exposure, her

remedies are limited to those benefits payable under Florida's Workers' Compensation

Law, and she should be required to litigate her claims to conclusion in the workers'

compensation proceedings before proceeding with her civil action in this court.

Discussion

Summary judgment is appropriate when the evidence, viewed in the light most

favorable to the nonmoving party, "shows that there is no genuine dispute as to any

material fact" and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(a); see also Martin v. Brevard County Pub. Sch., 543 F.3d 1261, 1265 (11th Cir.

2008). Taking the evidence in the light most favorable to Rush, there are no disputes of

material fact relevant to this summary judgment motion. Instead, the partes disagree on

the legal significance of Rush's voluntary dismissal of her workers' compensation claims

prior to obtaining a ruling on the merits from the compensation claims judge where her

Case No. 3:10cv436/MCR/EMT
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employer, BellSouth, denied the workers' compensation claims on grounds that the injury

did not occur in the course and scope of her employment. Because the court's jurisdiction

is based on diversity of citizenship, 28 U.S.C. § 1332, the legal issues are governed by

Florida law. See State Farm Fire and Cas. Co. v. Steinberg, 393 F.3d 1226, 1230 (11th

Cir. 2004). 

Florida's Workers' Compensation Law, Fla. Stat. 440.01, et seq., "'protects workers

and compensates them for injuries in the workplace, without examination of fault in the

causation of the injury.'" Feraci v. Grundy Marine Constr. Co., 315 F. Supp. 2d 1197, 1204

(N.D. Fla. 2004) (quoting Gerth v. Wilson, 774 So. 2d 5, 6 (Fla. 2nd DCA 2000)). "For

those who fall within the statute's purview, 'workers' compensation is the exclusive remedy

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

of the employment.'" Id. at 1204-05 (quoting Turner v. PCR, Inc., 754 So. 2d 683, 686

(Fla. 2000)) (internal alteration omitted). When an employer asserts a defense within the

purview of the Workers' Compensation Law, such as a pre-existing injury, the claimant

does not have an immediate right to pursue her claim in a tort suit but is obligated to litigate

that defense to a conclusion before the workers' compensation judge. See Tractor Supply

Co. v. Kent, 966 So. 2d 978, 981-82 (Fla. 5th DCA 2007) (citing Fla. Stat. 440.09(1)(b)),

rev. denied, 980 So. 2d 490 (Fla. 2008). If the claimant instead brings a tort action, the

employer may, in an appropriate case, assert workers' compensation immunity as a

defense. Id. However, this defense is not available if a judge of compensation claims

issued a decision that the claim was outside the Workers' Compensation Law, id. at 982

(citing Williams v. Hillsborough County Sch. Bd., 389 So. 2d 1218 (Fla. 1st DCA 1980)),

or if the employer has taken "clearly irreconcilable positions such as in claiming the incident

occurred outside the employment relationship but later claiming otherwise," id. at 981

(citing Byerley v. Citris Publishing, Inc., 725 So. 2d 1230 (Fla. 5th DCA 1999).

BellSouth argues that Rush's claims should be decided by the judge of

compensation claims before Rush is allowed to bring a claim in civil court, and suggests

that Florida law supports this argument, specifically the case of Tractor Supply Co. v. Kent,

966 So. 2d 978, 981-82 (Fla. 5th DCA 2007). In Kent, the Fifth District Court of Appeal

Case No. 3:10cv436/MCR/EMT
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held that the trial court erred when it struck an employer's affirmative defense of workers'

compensation immunity to a tort suit where the employer had previously – in the workers'

compensation case – denied benefits on the basis of a pre-existing medical condition. See

Kent, 966 So. 2d at 982. Noting that a pre-existing medical condition defense is a

statutorily authorized defense to a claim properly filed in workers' compensation; that is,

it is within the purview of the workers' compensation scheme, the court reasoned that the

plaintiff’s relief was limited to worker’s compensation and thus the employer was entitled

to immunity. See id. 

1

In reaching its decision in Kent, the court recognized that in enacting Florida’s

Workers’ Compensation Law the legislature had intended to create a process for "the quick

and efficient delivery of disability and medical benefits to an injured worker." Id. Bellsouth

urges this court to read this statement as an indication by the Kent court that employees

in Florida must exhaust their claims before a worker’s compensation judge before filing suit

in civil court. Bellsouth makes far too much of this language. Nothing in Kent, or any other

Florida case for that matter, even remotely stands for the proposition urged by Bellsouth. 

The above language was relevant to the Kent decision only because the court had first

determined that the employer was entitled to raise a worker’s compensation immunity

defense to the plaintiff’s claim. Reasoning that the pre-existing medical condition defense

raised by the employer in the worker’s compensation case was a statutorily recognized

defense; i.e within the purview of worker’s compensation, and thus not inconsistent with

the later-raised immunity defense, the employer should not have been precluded from

raising the immunity defense in the civil action. Id. at 982. Importantly, the Kent court

distinguished those cases in which the employer asserts in the workers' compensation

proceedings that the accident was not within the course and scope of employment,

explaining that in such cases the employer is estopped from later raising a workers’

compensation immunity defense in the civil action based on the irreconcilably inconsistent

position taken before the worker’s compensation court. See id. at 979-81; see also

The plaintiff in Kent argued in the civil action that the defendant should be estopped from raising

1

an immunity defense because it raised a defense to the worker’s compensation claim.

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Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545, 547 (Fla. 3d DCA) ("[A]n employer may

be equitably estopped from raising a workers' compensation exclusivity defense if the

employer denies the employee's claim by asserting that the injury did not occur in the

course and scope of his or her employment."), rev. denied, 44 So. 2d 581 (Fla. 2010);

Byerley, 725 So. 2d at 1232. Only after effectively concluding that the employer was

entitled to immunity (the immunity defense was not irreconcilably inconsistent with the preexisting condition defense raised before the workers' compensation court) did the Kent

court conclude that the employee had "jumped the gun" in filing suit. Kent, 966 So. 2d at

982. 

This case falls squarely within the circumstances deemed distinguishable by Kent. 

Here, BellSouth – in the workers' compensation setting – denied that the claim was within

the course and scope of Rush's employment. In so doing, BellSouth took the position that

the Workers' Compensation Law was inapplicable to the plaintiff’s claim. As explained in

Kent, that is different from asserting a statutorily-based defense to a worker’s

compensation claim, such as the pre-existing medical condition defense at issue in Kent,

which is within the purview of the workers' comp scheme and must be litigated there. 

Thus, BellSouth's argument that Kent supports the proposition that Rush should be

required to litigate her claim to completion before the worker’s compensation court is

incorrect. 

BellSouth has presented no authority, either in case law or statute, that would

require Rush to litigate her claims to a conclusion before the workers' compensation claims

judge (as opposed to this court) in the absence of a ruling on Bellsouth’s immunity

defense, which Bellsouth stresses is not before the court at this time. Indeed, on the

present motion, BellSouth presents only a policy argument that the workers' compensation

process provides the most efficient forum for resolving plaintiff’s claim. Policy decisions,

however, are for the legislature, not the courts.

Case No. 3:10cv436/MCR/EMT
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Accordingly, BellSouth's motion for summary judgment is DENIED.

DONE and ORDERED this 17th day of February, 2011.

 s/ M. Casey Rodgers 

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

Case No. 3:10cv436/MCR/EMT