The Florida Senate

440.10  Liability for compensation.--

(1)(a)  Every employer coming within the provisions of this chapter, including any brought within the chapter by waiver of exclusion or of exemption, shall be liable for, and shall secure, the payment to his or her employees, or any physician, surgeon, or pharmacist providing services under the provisions of s. 440.13, of the compensation payable under ss. 440.13, 440.15, and 440.16 Any contractor or subcontractor who engages in any public or private construction in the state shall secure and maintain compensation for his or her employees under this chapter as provided in s. 440.38

(b)  In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

(c)  A contractor may require a subcontractor to provide evidence of workers' compensation insurance or a copy of his or her certificate of election. A subcontractor electing to be exempt as a sole proprietor, partner, or officer of a corporation shall provide a copy of his or her certificate of election to the contractor.

(d)1.  If a contractor becomes liable for the payment of compensation to the employees of a subcontractor who has failed to secure such payment in violation of s. 440.38, the contractor or other third-party payor shall be entitled to recover from the subcontractor all benefits paid or payable plus interest unless the contractor and subcontractor have agreed in writing that the contractor will provide coverage.

2.  If a contractor or third-party payor becomes liable for the payment of compensation to the employee of a subcontractor who is actively engaged in the construction industry and has elected to be exempt from the provisions of this chapter, but whose election is invalid, the contractor or third-party payor may recover from the claimant, partnership, or corporation all benefits paid or payable plus interest, unless the contractor and the subcontractor have agreed in writing that the contractor will provide coverage.

(e)  A subcontractor is not liable for the payment of compensation to the employees of another subcontractor on such contract work and is not protected by the exclusiveness-of-liability provisions of s. 440.11 from action at law or in admiralty on account of injury of such employee of another subcontractor.

(f)  If an employer fails to secure compensation as required by this chapter, the department may assess against the employer a penalty not to exceed $5,000 for each employee of that employer who is classified by the employer as an independent contractor but who is found by the department to not meet the criteria for an independent contractor that are set forth in s. 440.02 The ¹division shall adopt rules to administer the provisions of this paragraph.

(g)  For purposes of this section, a person is conclusively presumed to be an independent contractor if:

1.  The independent contractor provides the general contractor with an affidavit stating that he or she meets all the requirements of s. 440.02; and

2.  The independent contractor provides the general contractor with a valid certificate of workers' compensation insurance or a valid certificate of exemption issued by the department.

A sole proprietor, partner, or officer of a corporation who elects exemption from this chapter by filing a certificate of election under s. 440.05 may not recover benefits or compensation under this chapter. An independent contractor who provides the general contractor with both an affidavit stating that he or she meets the requirements of s. 440.02 and a certificate of exemption is not an employee under s. 440.02 and may not recover benefits under this chapter. For purposes of determining the appropriate premium for workers' compensation coverage, carriers may not consider any person who meets the requirements of this paragraph to be an employee.

(2)  Compensation shall be payable irrespective of fault as a cause for the injury, except as provided in s. 440.09(3).

History.--s. 10, ch. 17481, 1935; CGL 1936 Supp. 5966(10); s. 4, ch. 18413, 1937; s. 6, ch. 74-197; s. 23, ch. 78-300; ss. 5, 124, ch. 79-40; s. 21, ch. 79-312; s. 2, ch. 80-236; s. 14, ch. 86-171; ss. 7, 43, ch. 89-289; ss. 15, 56, ch. 90-201; ss. 11, 52, ch. 91-1; s. 4, ch. 91-2; s. 7, ch. 93-415; s. 104, ch. 97-103; s. 4, ch. 98-174; s. 15, ch. 2002-194; s. 7, ch. 2002-236.

¹Note.--The Division of Workers' Compensation of the Department of Labor and Employment Security was transferred to the Department of Insurance by s. 1, ch. 2002-194. Section 15, ch. 2002-194, replaced existing references to the division in s. 440.10 with references to the Department of Insurance.