By Terrence McCoy
By Scott Fishman
By Deirdra Funcheon
By Allie Conti
By New Times Staff
By Ryan Pfeffer
By Deirdra Funcheon
By Kyle Swenson
Driving to and from work every day, Gallart passes the huge new Publix store on Atlantic Boulevard, around the corner from his home. The company's motto is posted on the front of the building in large green letters: Where shopping is a pleasure. Gallart scowls. "I wouldn't spit there," he says.
With so little in the way of effective regulation, you would think that the survivors of workers killed in job accidents could at least turn to the courts for help. But Publix has nothing to fear legally. It's shielded from lawsuits by the workers' compensation system. The Florida legislature established that system in 1935 to provide workers with a prompt means of collecting benefits to compensate them for losses associated with on-the-job injuries. At the same time, however, the system insulated employers from being sued.
Families cannot sue even when workers are killed on the job -- unless the employer deliberately set out to hurt the workers or place them at risk. Instead the employer's workers' compensation insurer is required to pay the spouse and minor children a death benefit, which currently is capped at $100,000, plus $5000 for funeral costs. The insurer may choose to pay that out over many years, and payments cease when the surviving spouse remarries or when the children turn age 18 (age 22 if they go to college). That means the full $100,000 benefit may never be paid.
Attorneys for the wives and children of Brown, Gallart, and Yates say that the survivors did receive death benefits. But Brown's young son and girlfriend will receive only half his modest wage -- about $700 a month -- until the payout reaches $100,000, according to Robert Gluck, a Plantation attorney who represented Brown's family on the workers' compensation claim.
With the $100,000 cap in place, workers' families and their attorneys frequently look for a way around the employer immunity provision. This has led to an increase in product-liability lawsuits against the manufacturers and distributors of equipment involved in fatal job accidents, who are not shielded by workers' compensation law, says Gerald Rosenthal, a labor attorney in West Palm Beach.
Last February, Katy Gallart filed suit in Palm Beach County Circuit Court against Nissan Forklift Corp., which manufactured the tugger on which her estranged husband died, and against Kelly Tractor Co., which sold the tugger to Publix. She is seeking damages on the grounds that the defendants were negligent in designing the tugger without a fail-safe stopping mechanism or adequate protection from objects intruding into the control area. West Palm Beach attorney Steve Calamusa, who represents Katy Gallart, says the manufacturer also was negligent in the placement of the reverse button.
Ironically this suit forces her attorney to play down the fault of the grocery chain. "Does Publix intend that its employees should get killed?" Calamusa asks. "I'd say no. OSHA found no wrongdoing. To be honest, I think it's a design problem." He refused to comment on whether he's discovered any other death or injury associated with Nissan Forklift tuggers.
Neither Nissan Forklift nor Kelly Tractor would comment on the lawsuit. But in a legal filing last June, Nissan noted that Gallart failed to remove the load bar before entering the trailer and also charged that he wasn't looking where he was going. The company also said that Publix may have been deficient in its training program. Kelly Tractor, in a filing last May, accused Publix of failing to inspect and maintain the tugger properly.
Henry Yates' widow and two minor children also filed a product-liability suit last year. Their suit, in Broward County Circuit Court, names Carrollton, Texas-based Serco Co., the maker of the Publix dock leveler that crushed Yates to death. It alleges that Serco was negligent in designing the device with a protruding button that could easily be pressed by accident and without a fail-safe stopping device or alarm warning that the ramp was descending.
Ed Rubinoff, a Miami attorney who is representing Susan Yates, notes that, while Yates had to keep his finger on a button to raise the dock leveler, lowering it required just one light touch on a second button. "This is a poorly designed machine that exposes workers to serious injury or death," Rubinoff argues. "Yates' death was very tragic, and the $100,000 death benefit to his wife and two children is grossly inadequate."
Several plaintiff attorneys contend that giving employers immunity from lawsuits reduces the financial incentive for companies to search out and modify unsafe equipment features -- like the tugger and dock leveler control buttons -- before accidents occur. "Publix' financial exposure is so small that it can have five deaths with no other consequences than its insurance rates going up a little," Gluck argues.
Richard Sicking, a labor attorney in Coral Gables, puts it even more strongly. "The workers' comp immunity law is a license to kill," he says.
Since her son's funeral, JoAnn Marble has been to the Forest Lawn cemetery in Pompano Beach to see her son's urn only once. "I don't have to go there to remember Louis," she says. "Not a day goes by that I don't think of him." There are constant painful reminders. Recently she received an invitation to Louis' ten-year high-school reunion.