As Florida lawmakers move quickly to try to shield businesses from coronavirus-related lawsuits, a Miami-Dade County circuit judge has refused to dismiss a case against Publix Super Markets that stems from the Covid-19 death of a deli worker.
Judge Carlos Lopez on Friday rejected a motion by Publix to dismiss the lawsuit filed by the estate of Gerardo Gutierrez, a 70-year-old employee of a Miami Beach store who died in April.
The lawsuit, filed in November, contends that Gutierrez was infected in late March by another employee who came to work with Covid-19. It makes a series of allegations, including that Publix at the time prevented employees from wearing masks that could have prevented the spread of the disease.
Publix argued in a motion to dismiss that the dispute should be handled as a workers’ compensation insurance case, rather than as a civil lawsuit in circuit court. Lopez held a hearing Wednesday and issued a one-paragraph order Friday denying the motion to dismiss, though the order does not explain his reasons..
The decision, which clears the way for the lawsuit to move forward, came as Republican leaders of the Florida House and Senate have made a priority of passing legislation to help block coronavirus-related lawsuits against businesses.
The proposed legislation appears likely to be approved early in the 2021 session, which will start March 2. The proposed changes would not apply to lawsuits, such as the Gutierrez case, filed before the legislation is passed and takes effect, according to a House staff analysis.
The Gutierrez lawsuit, which seeks damages on behalf of his children, centers on infections that occurred relatively early in the pandemic.
It contends that Gutierrez worked on March 27 and March 28 alongside another deli worker, identified as Jane Doe, who showed signs of COVID-19, including coughing. It alleges that Jane Doe was not sent home from work and that Publix prevented deli workers from wearing masks at the time.
After Jane Doe tested positive for Covid-19, Gutierrez was sent home April 2 and told to quarantine, according to the lawsuit. He was later hospitalized and died from complications of the disease on April 28.
“Publix owed a duty to Gerardo Gutierrez to maintain its premises in a reasonably safe condition,” the lawsuit said. “This duty included, but was not limited to, ensuring that employees known or suspected to be sick with COVID-19 did not present to work or were immediately sent home, and ensuring that employees were able to use personal protective equipment for their protection and prevention against the spread of Covid-19.”
In its motion to dismiss the case, Publix argued that the case should be handled through the workers’ compensation system and that ”government action throughout the month of March 2020 alleged in the complaint gives no warning, let alone an explicit warning concerning wearing masks.”
The workers’ compensation system is generally designed to keep disputes about injuries or deaths out of traditional courts and uses a process handled by judges of compensation claims.
Publix’s motion to dismiss the case, filed Dec. 24, said the representative of Gutierrez’s estate “attempts to circumvent the exclusivity of (workers’) compensation by filing a complaint, littered with inflammatory and unsupported rhetoric.”
“Plaintiff alleges that decedent (Gutierrez) contracted Covid-19, while decedent was acting in the course and scope of his employment with Publix, resulting in his death,” the motion said. “Given that the complaint alleges that the decedent’s injury occurred in the course and scope of employment, the plaintiff has filed the … lawsuit in the incorrect court.”
–Jim Saunders, News Service of Florida
If a company in any state doesn’t protect their employee’s they should be held accountable as wells as the state for which they live for not protecting its citizens. When a governor at that state takes an oath of office to protect their people of that state that is the job they are elected to do and when they don’t they also should be held accountable.
With everything that has come out these past few weeks about Publix, it’s disappointing to know the kind of company they really are. I am stuck shopping there as I won’t shop at Walmart or Target for other reasons and Win-Dixie is gross. I’m not traveling N/S for food so I’m left with no choice but to continue to give them my money. At least many of the workers there are good people. That makes it better.
Scott McKirahan says
How in the world do you prove that the plaintiff actually contracted COVID while working? Although one person there did test positive, that does not mean that the employee necessarily gave the disease to the decedent. Furthermore, did ALL of the other employees working in proximity with the employee who tested positive for COVID also get COVID or was it just this one worker? If not, it sure seems possible that the defense will argue that there is no way to prove that the decedent contracted COVID while at work. He could have contracted the disease anywhere.
I should also point out that nobody knew anything about this disease in March of 2020 and that the rules were constantly changing. There certainly was no mask mandate in Florida and, in fact, Dr. Fauci was on “60 Minutes” on March 8th telling people that masks were not necessary. The CDC did not issue its mask recommendations until April 3rd of 202.
I realize this is a tragedy and the knee-jerk reaction to make someone pay is natural but really, holding Publix accountable for this before even the major health organizations knew what to do is a bit far-fetched. Commenting in February of 2021 about what should have been done 11 months beforehand when nobody in the world – including the experts – knew anything is more than a bit revisionist.