Q. We are a private company that provides services under contract to a subdivision of the state. Normally, before any tort lawsuit has been filed against us related to our services to the state agency, we have received a pre-suit notice as required under Section 768.25, Florida Statutes, to trigger a waiver of sovereign immunity. A former employee has brought a lawsuit against us, alleging that his discharge was unlawful workers’ compensation retaliation under Section 440.205, Florida Statutes. However, he never sent us a pre-suit notice for this statutory tort. Can we get the case thrown out?
A. No. The Florida Supreme Court has now resolved conflicting Florida appellate court decisions on this question. It found that the Florida Workers’ Compensation Law’s definition of “employer” includes the state and its subdivisions when acting as employers. It also found that, when the Legislature failed to enact any specific requirement to comply with Section 768.25, that meant sovereign immunity was waived for workers’ compensation retaliation claims.
Thus, there is no need to provide any pre-suit notice; employees are permitted simply to file directly in court their complaints under Section 440.205.