Third Party Personal Injury Claims

Reviewed by Carolyn Friedman Frank, a Florida workers’ compensation attorney who handles workers' compensation and medical malpractice matters. Last updated July 29, 2026.

Workers' compensation is the exclusive remedy against an employer under Florida Statute § 440.11, so an injured worker generally cannot sue the company that employs them. That bar stops at the employer. When someone else caused the injury, a separate negligence claim can proceed at the same time as worker’s compensation and pay damages the compensation system does not provide.

• What the bar covers: Florida Statute § 440.11 makes compensation the exclusive remedy against the employer, with a narrow exception for proof the employer deliberately intended to injure the worker.
• Who is a third party: Anyone other than the employer whose negligence contributed, including equipment manufacturers, property owners, general contractors, subcontractors, and negligent drivers.
• Both claims at once: Florida Statute § 440.39 lets a worker accept compensation benefits and pursue an action at law against a third party at the same time.
• What comp cannot pay: Chapter 440 provides indemnity and medical benefits only, with no noneconomic damages provision, so pain and suffering is unavailable through the compensation system.
• Two deadlines: Under Florida Statute § 440.19 the two-year window for a petition for benefits does not start running until one year after the last payment of benefits or last authorized treatment. The negligence claim runs two years from the incident under Florida Statute § 95.11(5)(a).
• The carrier's lien: Under Florida Statute § 440.39 the employer or carrier is subrogated to the benefits it paid and holds a lien on any third-party recovery.

The workers' compensation and personal injury attorneys at Friedman Rodman Frank & Estrada handle both sides of these cases together for workers across Miami-Dade and Broward Counties.

Most injured workers are told, correctly, that Florida workers' compensation is their remedy and that they cannot sue their employer. Far fewer are told that the rule stops at the employer. A roofer who falls because a general contractor left a hole unguarded, a warehouse worker crushed by a forklift with a defective backup alarm, a delivery driver rear-ended on the Palmetto Expressway, all of them have a compensation claim and a separate negligence claim against someone who was not their employer. We handle both claims together, and the second one is often worth many times the first.

It bars suits against the employer, and nothing more. Florida Statute § 440.11 makes workers' compensation the exclusive remedy an employee has against an employer for a work injury. Florida Statute § 440.015 describes the trade as a mutual renunciation of common-law rights and defenses, meaning the worker gives up the right to sue and the burden of proving negligence, and in exchange receives benefits without a fault fight. Compensability under Florida Statute § 440.09 requires that the injury arose out of and in the course of employment, with work as the major contributing cause, more than 50 percent responsible compared to all other causes combined.

The exception that would let a worker sue an employer is narrow. It requires clear and convincing evidence that the employer engaged in conduct it knew was virtually certain to cause injury, or that it deliberately intended to injure the employee. Carelessness does not meet that standard, and neither does a safety violation.

What the bar does not touch is everyone else. A property owner, a general contractor, a subcontractor working alongside you, an equipment manufacturer, a maintenance company, a driver who hit your work vehicle, none of them are your employer, and none of them get the protection of Florida Statute § 440.11.

Anyone other than your employer whose negligence contributed to the injury. On a construction site, the usual defendants are the general contractor responsible for site safety and other subcontractors whose crews created the hazard. In warehouse and manufacturing injuries, the defendant is often the manufacturer of a machine that lacked a guard or a working safety interlock, which is a Florida product liability claim. For anyone who drives as part of the job, the third party is the at-fault motorist, and the claim runs like any other Miami car accident case. Property owners are third parties when a worker is hurt by a dangerous condition on premises the employer does not control.

Where more than one company contributed, Florida Statute § 768.81(3) governs how responsibility gets divided. Joint and several liability is abolished, the jury assigns each party its own percentage, and a defendant may place fault on a party who is not in the lawsuit. That includes the employer. A defendant contractor will often argue the employer's own supervision caused the injury, and because the employer cannot be sued, that share simply can reduce what the worker collects.

Pain and suffering, and the full value of a lost career. Chapter 440 provides indemnity benefits and medical care, and nothing else. There is no noneconomic damages provision anywhere in the statute, which is the direct consequence of the bargain in Florida Statute § 440.11. However catastrophic the injury, the compensation system will not pay a dollar for pain, disfigurement, disability, or the loss of things the worker can no longer do.

The indemnity benefits it does pay are capped by formula rather than by loss. Temporary total disability under Florida Statute § 440.15 pays two-thirds of the average weekly wage, subject to a statewide maximum. The statute reads a 104-week cap on temporary benefits, but the Florida Supreme Court held that limit unconstitutional in Westphal v. City of St. Petersburg, 194 So. 3d 311 (Fla. 2016) and revived the prior 260-week limit, so payment of temporary benefits can run up to 260 weeks in practice. Medical care under Florida Statute § 440.13 comes only through a physician the employer or carrier authorizes, with one change of physician available on written request.

A third-party negligence claim carries the ordinary personal injury categories, including past and future medical expenses at full value rather than at a fee schedule, full lost wages rather than two-thirds, diminished earning capacity, and noneconomic damages for pain, disability, disfigurement, and mental anguish. In a serious injury the noneconomic component alone commonly exceeds everything the compensation claim will ever pay. The firm's results in workplace cases reflect that gap, including a $16.6 million recovery for a roofer's fall and $6 million in a forklift injury.

The two claims run on separate clocks in separate forums, and missing one does not excuse missing the other. The compensation claim starts with reporting the injury to the employer within 30 days under Florida Statute § 440.185. If benefits are denied or stop, the worker files a Petition for Benefits with the Office of the Judges of Compensation Claims, where a Judge of Compensation Claims may ultimately decide it and appeals go to the First District Court of Appeal under Florida Statute § 440.271. Florida Statute § 440.19 sets a two-year period, and how that period is counted changed in 2026. In Estes v. Palm Beach County School District, decided en banc, the First District Court of Appeal held that the statute's one-year provision suspends the two-year clock rather than extending it, receding from roughly 25 years of its own contrary decisions. The practical effect is that the two years do not begin to run until one year after the last payment of benefits or the last authorized treatment, so a petition an insurer calls time-barred under the older reading may still be timely.

Friedman Rodman Frank & Estrada files workers' compensation Petitions before the Office of the Judges of Compensation Claims and third-party negligence suits in the Eleventh Judicial Circuit side by side, for injured workers across Miami-Dade and Broward Counties. The third-party claim is filed in circuit court, in Miami-Dade County the Eleventh Judicial Circuit, and Florida Statute § 95.11(5)(a) gives two years from the date of the incident with no equivalent tolling. A worker who spends three years inside the compensation system waiting for a benefits dispute to resolve can find the negligence claim gone.

The lien connects the two. Florida Statute § 440.39 provides that an injured employee may accept compensation benefits and at the same time pursue a remedy by action at law, and in exchange the employer or carrier is subrogated to what it has paid. It holds a lien on any judgment or settlement, recovering that amount less its pro-rata share of the attorney's fees and costs that produced the recovery. Where the worker shows the recovery did not compensate their full damages, the carrier's share is reduced in proportion to that shortfall, which is why a carefully documented settlement is worth more in the worker's hands. The statute also carries a timing rule. If the worker does not sue within one year after the cause of action accrues, the employer or carrier may bring the action itself, and if the carrier then does not file within two years of accrual, the worker's exclusive right to sue is restored.

These cases turn on two record sets serving different purposes. The compensation side rests on the Florida Statute § 440.185 injury report and whether it was made inside the 30-day window, the authorized treating physician's records under Florida Statute § 440.13, and the wage records that fix the average weekly wage every indemnity benefit is calculated from. Those records establish compensability and the benefit rate, and they become the baseline a tort defendant will measure the injury claim against.

The negligence side rests on proof about who controlled the hazard. Contracts and subcontracts identify which company owed which safety duty on the site, and site safety plans, toolbox talk records, and daily logs show what the general contractor knew. For an equipment failure, the case turns on the machine's maintenance history and whether guards or interlocks had been removed. An OSHA inspection file, where one exists, documents conditions close in time to the injury, and photographs taken before the scene is cleaned up are often the difference between a provable claim and a disputed one. Apportionment under Florida Statute § 768.81 runs through all of it, and here it runs in an unusual direction, because the defendant's best argument is often that the employer, who cannot be sued, was at fault. The evidence identifying which company controlled the hazard therefore does two jobs, proving the case against the third party and answering the empty-chair argument.

We treat the compensation claim and the negligence claim as one strategy rather than two files. That means keeping benefits flowing under Chapter 440 while the tort case develops, so a worker is not forced into a bad settlement by unpaid bills. It means being careful about what goes into the compensation record, because the authorized physician's opinions and the statements taken early will be read back in the tort case. It means identifying every potential third party in the first weeks, while contracts, equipment, and site conditions can still be documented. And it means negotiating the carrier's lien as part of resolving the case, since the proportional reduction available under Florida Statute § 440.39 is worth real money to the worker. Friedman Rodman Frank & Estrada has handled workplace injury claims across Miami-Dade, Broward, and Collier Counties since 1976.

Several steps matter in the first days. Report the injury to your employer in writing and keep a copy, because the 30-day rule is a live defense and memories about verbal reports differ. Photograph the equipment and the location before the site is cleaned or the machine is repaired. Write down the names of every company working in the area that day, not just your own crew, since those names are the list of potential third parties. Keep every medical record and bill, including treatment you paid for yourself. Do not give a recorded statement to any insurer, including your employer's carrier, before you have advice. Where the injury happened on a construction site, who controlled the hazard is the whole case, and our Miami construction accident practice covers how those responsibilities get divided.

• Premises liability claims are the usual route when a worker is hurt by a dangerous condition on property the employer does not own or control.
• South Florida personal injury claims follow the same negligence framework and damages categories that govern the third-party side of a work injury case.
• Florida wrongful death claims apply when a worker is killed, and they run alongside the death benefits payable through the compensation system.

If you were hurt on the job anywhere in Miami-Dade, Broward, Collier, Lee, or Palm Beach County and someone other than your employer played a part, it is worth finding out early, because the negligence claim has its own deadline and its own evidence. Friedman Rodman Frank & Estrada has handled workplace injury and third-party claims together since 1976, we advance the costs of investigating them, and there is no fee unless and until we recover for you. Call (877) 448-8585 or contact our South Florida work injury team for a free consultation. We speak English, Spanish, and Creole.