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Applicability of the Workers’ Compensation exclusion depends on statutory definitions

Submitted by Maureen Martinez and Carri Leininger on 12 Feb, 2024

Scenario: An insured company paid someone under the table to complete work. The injured worker was not on a schedule, rather appeared randomly to offer services in exchange for payment (cash) whenever he/she needed money. One day, the worker is injured when performing an assigned task. 

Question: If the injured worker is not an employee as defined by the policy, does the standard Workers’ Compensation exclusion apply?  Probably.


Most CGL polices contain the following exclusion: 



This insurance does not apply to: 

    Workers’ Compensation and Similar Laws 

     Any obligation of the insured under a workers’ compensation, disability 

     benefits or unemployment compensation law or any similar law.   

     (emphasis added) 


As shown, the applicability of the exclusion depends on whether there is an obligation to the injured worker to secure workers’ compensation coverage. Florida’s Workers’ Compensation statute defines employee as follows: 


(18)(a) “Employee” means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors. Fla.Stat.§440.02(18)(a) 


Thus, if the injured worker received payment for the services performed, he/she is an employee as defined by Florida’s Workers’ Compensation laws.  And if an employee as defined by the statute, the exclusion applies. See, Wesco Insurance Company v. Don Bell, Inc., 574 Fed.Appx.872 (11th Cir. 2014)(holding, “[d]river’s status as a temporary worker under the policy did not affect his status as employee under worker’s compensation exclusion”; “..policy’s definition of employee was irrelevant to policy’s workers’ compensation exclusion which defined employee pursuant to workers’ compensation statute.”) 


Please note F.S. §440.02(18)(d), sets forth the criteria for determining whether a worker is an employee or an independent contractor. If the Plaintiff is claiming independent contractor status, we recommend reviewing this subsection to guide your determination.