Denial of Shot Employee’s Comp Claim Opens Door to Tort Suit Against Pepsi

03 May, 2024 Chris Parker


Medley, FL ( – Before denying a claim on the basis that it isn’t work-related, an employer should carefully consider the potential risks of doing so. One of those risks for Florida employers is that, if they deny the claim on the basis that it did not occur in the course and scope of employment, they cannot then claim they have workers’ compensation immunity to a negligence lawsuit arising out of the injury.

In other words, as a case involving a Pepsi employee in Florida shows, the employee can’t “have its cake and eat it too.” In Bottling Group, LLC v. Bastien, No. No. 3D23-1298 (Fla. Dist. Ct. App. 04/24/24), the employee worked at a Pepsi packaging and distribution facility. One day, a coworker, purportedly disgruntled over union activities, shot him several times. 

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While recovering in the hospital, the employee, who had suffered serious injuries, notified his manager that he intended to file a workers' compensation claim. The company sent him a denial notice. The notice stated, in relevant part: 

"Claim is denied in its entirety, as not a compensable accident or injury. Injury did not occur in the course or scope of employment. Accident/Injury occurred off premises."

The employee filed a tort lawsuit in the circuit court against his employer. PepsiCo moved to dismiss, contending it was entitled to workers' compensation immunity. The employee successfully argued that PepsiCo could not now assert immunity (in legal terms, it was “equitably estopped” from doing so).

The court noted that if an employee sustains an injury on the job, workers' compensation is ordinarily the exclusive remedy. He can’t sue the company for negligence or for another tort.

On the other hand, if the employer asserts that the injury did not occur in the course and scope of employment, it generally thereby opens the door to tort litigation.

To establish estoppel, an employee must prove three elements: 

  1. The employer made a representation as to a material fact that is contrary to a later-asserted position;
  2. The employee relied upon that representation; and 
  3. The employee changed his position to his detriment because of his reliance on the representation. 

Whether estoppel applies depends on the facts of the case, the court observed. But where, as in this case, the employer’s or carrier’s denial is absolutely clear on its face and the reason given is that the accident didn’t occur in the course and scope of employment, the employer may not then turn around and assert that the injury is in fact work-related and compensable. 

Here, the employer opposed the claim on the basis the injuries did not occur within the course and scope of employment. “[The employee] accepted and relied upon the denial, bore his medical expenses, and then sued [the employer] in tort,” the court wrote. The workers’ compensation act permitted him to do so under the circumstances.

The court held that the employer was barred from asserting that the employee’s exclusive remedy was workers’ compensation. It thus effectively green-lighted the worker’s tort claim against the company.

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