          Supreme Court of Florida
                                   ____________

                                   No. SC13-696
                                   ____________

                           LETICIA MORALES, et al.,
                                  Appellants,

                                         vs.

                      ZENITH INSURANCE COMPANY,
                                Appellee.

                                [December 4, 2014]

POLSTON, J.

      In a breach of contract action brought by the estate of a deceased employee

against his employer’s workers’ compensation and employer liability insurance

carrier, the United States Court of Appeals for the Eleventh Circuit certified the

following questions of Florida law:1

      (1) DOES THE ESTATE HAVE STANDING TO BRING ITS
      BREACH OF CONTRACT CLAIM AGAINST ZENITH UNDER
      THE EMPLOYER LIABILITY POLICY?

      (2) IF SO, DOES THE PROVISION IN THE EMPLOYER
      LIABILITY POLICY WHICH EXCLUDES FROM COVERAGE
      “ANY OBLIGATION IMPOSED BY WORKERS’


      1. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const.
      COMPENSATION . . . LAW” OPERATE TO EXCLUDE
      COVERAGE OF THE ESTATE’S CLAIM AGAINST ZENITH FOR
      THE TORT JUDGMENT?

      (3) IF THE ESTATE’S CLAIM IS NOT BARRED BY THE
      WORKERS’ COMPENSATION EXCLUSION, DOES THE
      RELEASE IN THE WORKERS’ COMPENSATION SETTLEMENT
      AGREEMENT OTHERWISE PROHIBIT THE ESTATE’S
      COLLECTION OF THE TORT JUDGMENT?

Morales v. Zenith Ins. Co., 714 F.3d 1220, 1234 (11th Cir. 2013).

      For the reasons that follow, we hold that, under Florida law, the estate has

standing, but that the workers’ compensation exclusion and the release prevent it

from collecting the tort judgment from Zenith. Accordingly, we answer all three

certified questions in the affirmative.

                                  BACKGROUND

      Santana Morales, Jr., was crushed to death by a palm tree while working for

Lawns Nursery and Irrigation Designs, Inc. (Lawns). Thereafter, his surviving

spouse, Leticia Morales, entered into a workers’ compensation settlement

agreement with Lawns and Lawns’ workers’ compensation and employer liability

insurance carrier, Zenith Insurance Company (Zenith). The settlement agreement

contained a release, through which Ms. Morales elected the consideration

described in the agreement as the sole remedy with respect to the insurance

coverage that Zenith provided to Lawns.




                                          -2-
      In a separate wrongful death lawsuit, which was ongoing when the parties

entered the settlement agreement, Morales’ estate alleged that Lawns’ negligence

caused his death and obtained a default judgment against Lawns for $9.525

million. After Zenith refused to pay the tort judgment, the estate sued Zenith in

state court under Lawns’ employer liability policy, alleging that Zenith had

breached the policy. Zenith removed the case to federal court, and the federal

district court held that the policy’s workers’ compensation exclusion barred the

estate’s suit and therefore entered summary judgment in Zenith’s favor. Morales

v. Zenith Ins. Co., 2012 WL 124086, at *8 (M.D. Fla. Jan. 17, 2012).

      On appeal, the Eleventh Circuit concluded that it is unclear under Florida

law “whether a workers’ compensation exclusion in an employer liability policy—

which is intended to protect employers from tort liability to their employees—bars

coverage of an employee’s tort judgment obtained in a separate negligence suit

against the employer.” Morales, 714 F.3d at 1228. The Eleventh Circuit further

concluded that Florida law is unsettled as to whether the estate has standing to sue

Zenith under Lawns’ employer liability policy and whether, if the workers’

compensation exclusion does not bar the estate’s claim, the release in the workers’

compensation settlement agreement prevents the estate from collecting the tort

judgment from Zenith. Id. at 1234. Accordingly, the Eleventh Circuit certified the

three questions of law set forth above to this Court. Id.


                                        -3-
                                     I. Standing

      The Eleventh Circuit first asks whether the estate has standing under Lawns’

employer liability policy to sue Zenith for breach of contract. We hold that it does

and therefore answer the first certified question in the affirmative.

      Under Florida law, a judgment creditor has standing to bring suit against a

liability insurer that may have coverage for the judgment. See Johnson v. Dawson,

257 So. 2d 282, 284 (Fla. 3d DCA 1972) (“[A] judgment creditor has standing to

raise the issues of estoppel and waiver as to insurance coverage against the insurer

of the judgment debtor. However, one possessing standing does not necessarily

prevail upon the proper application of the legal principles he may assert.”);

Williams v. Union Nat’l Ins. Co., 528 So. 2d 454, 455 n.1 (Fla. 1st DCA 1988)

(recognizing the right of a judgment creditor to proceed directly against a

tortfeasor’s insurance company); see also VanBibber v. Hartford Accident &

Indem. Ins. Co., 439 So. 2d 880, 882-83 (Fla. 1983) (recognizing the ability of an

injured person to bring claims as a third-party beneficiary against the tortfeasor’s

insurance company after obtaining a judgment against the tortfeasor). In fact,

Florida’s nonjoinder statute specifically allows a “cause of action against a liability

insurer by a person not an insured under the terms of the liability insurance

contract [but who] obtain[s] a settlement or verdict against a person who is an




                                         -4-
insured under the terms of such policy for a cause of action which is covered by

such policy.” § 627.4136(1), Fla. Stat. (2009).

      Accordingly, by virtue of having obtained a judgment against Lawns,

Morales’ estate has standing to bring a direct action against Zenith to recover that

judgment. Therefore, we answer the first certified question in the affirmative.

                      II. Workers’ Compensation Exclusion

      The Eleventh Circuit next asks whether the workers’ compensation

exclusion in the employer liability policy excludes coverage of the estate’s tort

judgment against Lawns. We hold that it does and therefore answer the second

certified question in the affirmative.

      As the Eleventh Circuit explained, “[u]ltimately, an insurer’s liability

depends on whether the insured’s claim is within the coverage of the policy.”

Morales, 714 F.3d at 1227. In determining whether a claim is covered by an

insurance policy, this Court enforces “a clear and unambiguous” provision

pursuant to its plain language regardless of “whether it is a basic policy provision

or an exclusionary provision.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913

So. 2d 528, 532 (Fla. 2005) (quoting Hagen v. Aetna Cas. & Sur. Co., 675 So. 2d

963, 965 (Fla. 5th DCA 1996)). Further, this Court reads the “policy as a whole,

endeavoring to give every provision its full meaning and operative effect.” U.S.

Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871, 877 (Fla. 2007) (quoting Auto-


                                         -5-
Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000)). Only if a provision

is ambiguous after considering the policy as a whole will this Court construe the

ambiguous provision against the insurer in favor of coverage. Swire Pac.

Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003).

       The policy at issue is a “Workers Compensation and Employers Liability

Insurance Policy” issued by Zenith to Morales’ employer, Lawns. Part One of the

policy provides Workers Compensation Insurance, under which Zenith agreed to

pay “the benefits required of [Lawns] by the workers compensation law.” Part

Two provides Employers Liability Insurance, under which Zenith agreed to pay

“all sums [Lawns] legally must pay as damages because of bodily injury to [its]

employees, provided the bodily injury is covered by this Employers Liability

Insurance.” Through a workers’ compensation exclusion, the employer liability

policy excludes coverage for “any obligation imposed by a workers compensation .

. . law.”

       Reading these provisions together, it is clear that the workers’ compensation

exclusion bars coverage of claims arising from bodily injuries for which Lawns is

required to pay benefits under workers’ compensation law—i.e., claims that are

covered by the workers’ compensation insurance portion of the policy. In other

words, as we have previously explained, employer liability insurance is a “gap-

filler [that] provid[es] protection to the employer in those situations where the


                                         -6-
employee has a right to bring a tort action despite the provisions of the workers’

compensation statute.” Travelers Indem. Co. v. PCR Inc., 889 So. 2d 779, 784 n.7

(Fla. 2004) (quoting Producers Dairy Delivery Co. v. Sentry Ins. Co., 718 P.2d

920, 927 (Cal. 1986)); see also Appleman on Insurance Law and Practice § 4571

(Berdal ed. 1979) (describing the coverages provided by workers’ compensation

and employer liability insurance as “mutually exclusive”); 9A Couch on Ins. §

132:57 (3d ed. 2013) (explaining that employer liability insurance “ ‘fill[s] the

gaps’ in workers’ compensation coverage”).

      In this case, the estate did not have the right to bring a tort action against

Lawns. Rather, because the estate alleged that Lawns’ negligence caused Morales’

death, its exclusive remedy was under Florida’s Workers’ Compensation Law,

chapter 440, Florida Statutes. See generally § 440.11(1), Fla. Stat. (2014)

(addressing the exclusiveness of workers’ compensation liability); see also Eller v.

Shova, 630 So. 2d 537, 539 (Fla. 1993) (“[W]orkers’ compensation is the

exclusive remedy available to an injured employee as to any negligence on the part

of that employee’s employer . . . so long as the employer has not engaged in any

intentional act designed to result in or that is substantially certain to result in injury

or death to the employee.”); Morales, 2012 WL 124086, at *3 (“Workers’

compensation laws effectuate a compromise between employers and employees in




                                           -7-
which employers pay prompt benefits to injured workers, regardless of fault, and

employees in turn give up their common law rights to sue their employer in tort.”).

      Despite not having the right to do so, the estate brought a separate tort action

against Lawns and secured a default judgment. The estate now argues that Zenith

cannot avoid coverage of the tort judgment through the workers’ compensation

exclusion since the judgment is a duty to pay imposed by tort law, not an

“obligation imposed by workers’ compensation law.” In support of this argument,

the estate relies primarily on the Fourth District Court of Appeal’s decision in

Wright v. Hartford Underwriters Ins. Co., 823 So. 2d 241, 243 (Fla. 4th DCA

2002), in which the Fourth District concluded that an insurance company could not

rely on a workers’ compensation exclusion to avoid coverage of a settlement

judgment entered in an injured employee’s civil suit against his employer because

the judgment was not an “obligation imposed by workers’ compensation law.”

      However, unlike the estate’s complaint against Lawns—which alleged that

Lawns’ negligence caused Morales’ death and therefore plainly implicated

workers’ compensation exclusivity—“the affirmative defense of workers

compensation immunity [did not] appear[] on the face of Wright’s civil

complaint.” Id. at 242 n.3. Instead, as the Fourth District explained, Wright

alleged that his injuries were the result of a fellow employee’s gross negligence,

for which his employer was vicariously liable. Id. at 241. This allegation


                                        -8-
implicated a statutory exception to workers’ compensation immunity and allowed

Wright to pursue a civil remedy. See generally § 440.11(1), Fla. Stat. (“[F]ellow-

employee immunities shall not be applicable to an employee who acts, with respect

to a fellow employee, . . . with gross negligence when such acts result in injury or

death[.]”); see also Wright, 823 So. 2d at 243 (“Whether [Wright’s co-worker] is

an insured under the policy and whether the intentional tort exclusion applies are

issues remaining to be determined.”). In other words, unlike the estate’s

allegations against Lawns, Wright’s allegations against his employer removed his

claim from the exclusivity of Florida’s Workers’ Compensation Law, thereby

implicating a gap in his employer’s workers’ compensation insurance for the

employer liability insurance to fill.

      Though the nature of Wright’s claim makes the Fourth District’s application

of the workers’ compensation exclusion in his case inapplicable to the facts of this

case, its more recent decision in Indian Harbor Ins. Co. v. Williams, 998 So. 2d

677 (Fla. 4th DCA 2009), is instructive as to how the workers’ compensation

exclusion applies to negligence-based claims by injured employees. In Indian

Harbor, 998 So. 2d at 678, the Fourth District addressed whether the employer,

who was insured under a commercial general liability (CGL) policy, “was entitled

to coverage for negligence claims brought against him by his employees . . . for

injuries they sustained within the course and scope of their employment.” Even


                                        -9-
though the employer had violated its statutory duty to maintain workers’

compensation insurance, and even though the employee’s claim was also barred by

a separate employee exclusion, the Fourth District applied the policy’s workers’

compensation exclusion to hold that the employer was not entitled to coverage. Id.

at 679.

      In so holding, the Fourth District “adopt[ed] the reasoning” of the Third

District Court of Appeal’s decision in Florida Insurance Guaranty Ass’n v.

Revoredo, 698 So. 2d 890 (Fla. 3d DCA 1997). Id. Like the Fourth District in

Indian Harbor, the Third District in Revoredo addressed whether a CGL policy’s

workers’ compensation exclusion barred coverage of an employee’s negligence

claim where the employer had failed to secure workers’ compensation insurance.

Revoredo, 698 So. 2d at 891. The Third District held that “both” the workers’

compensation exclusion and a separate employee exclusion (which generally bars

coverage for bodily injury to employees) applied to preclude coverage. Id. The

Third District explained its holding with respect to the workers’ compensation

exclusion as follows: because “[t]he ‘employer’s liability’ is pursuant to section

440.11(1)” of the Workers’ Compensation Law, its “obligation to [the employee] is

one ‘under a workers’ compensation . . . law’ ” for purposes of the CGL policy’s

workers’ compensation exclusion. Id. at 893; see also XL Ins. Am., Inc. v. Ortiz,

673 F. Supp. 2d 1331, 1344-45 & n.14 (S.D. Fla. 2009) (holding CGL policy’s


                                       - 10 -
workers’ compensation exclusion precluded recovery of damages for the same

bodily injury for which the employee had received workers’ compensation

benefits); Sinni v. Scottsdale Ins. Co., 676 F. Supp. 2d 1319, 1332 (M.D. Fla.

2009) (“[C]overage is determined by looking at the policy and the actual facts—

not the labels attached to the underlying tort obligation.”).

      Like the negligence-based claims in Indian Harbor and Revoredo, the

estate’s tort judgment arises from an injury that plainly falls within the exclusivity

of Florida’s Workers’ Compensation Law and therefore within the coverage

provided by Lawns’ workers’ compensation policy. Given the mutually exclusive

nature of workers’ compensation and employer liability coverages, Zenith has no

obligation under the employer liability policy to pay the tort judgment. See 8

Couch on Ins. § 115:89 (3d ed. 2013) (“It is the fact that the employee’s claim

comes within the scope of the workers’ compensation statute rather than the actual

fact that he or she has recovered or is receiving workers’ compensation for his or

her harm, which is the basis for exclusion [under a workers’ compensation

exclusion]. . . . [A]nyone who is eligible for compensation is excluded.”).

      Accordingly, we hold that the workers’ compensation exclusion bars

coverage of the estate’s tort judgment under the employer liability policy.

Therefore, we answer the second certified question in the affirmative.

                                     III. Release


                                         - 11 -
      Last, the Eleventh Circuit asks whether the release in the workers’

compensation settlement agreement precludes the estate from collecting the tort

judgment from Zenith. We hold that it does and therefore answer the third

certified question in the affirmative.

      As explained above, while the estate’s wrongful death action was pending

against Lawns, Morales’ surviving spouse, Leticia Morales (who is also the

personal representative of Morales’ estate), entered into a workers’ compensation

settlement agreement with Lawns and Zenith. The agreement was entered

pursuant to section 440.20(11)(c)-(e) of Florida’s Workers’ Compensation Law,

and contains the following release:

      ELECTION AND WAIVER: Pursuant to Florida Statutes, Section
      440.20(11)(c) (2001), in exchange for the consideration described
      below, the Claimant hereby waives all rights to any and all benefits
      under The Florida Workers’ Compensation Act. Further, this
      settlement and agreement shall constitute an election of remedies by
      the claimant with respect to the employer and the carrier as to the
      coverage provided to the employer.

      We read this provision to do what it says, namely to elect the consideration

described in the settlement agreement (i.e., a lump-sum payment authorized by

section 440.20(11)(c) of the Workers’ Compensation Law) as the sole remedy for

Morales’ death. Florida law authorizes such an election. See Jones v. Martin

Electronics, Inc., 932 So. 2d 1100, 1106 (Fla. 2006) (“[T]o constitute an election of

remedies the workers’ compensation remedy must be pursued to a determination or



                                         - 12 -
conclusion on the merits. . . . There must be evidence of a conscious intent by the

claimant to elect the compensation remedy and to waive his other rights.”) (quoting

Wheeled Coach Indus., Inc. v. Annulis, 852 So. 2d 430, 433 (Fla. 5th DCA 2003));

see also Petro Stopping Ctrs., L.P. v. Gall, 23 So. 3d 849, 852 (Fla. 5th DCA 2009)

(holding claimant elected workers’ compensation benefits to the exclusion of tort

benefits through a settlement agreement); Moniz v. Reitano Enters., Inc., 709 So.

2d 150, 153 (Fla. 5th DCA 1998) (precluding employee from maintaining tort

action for injuries that were not separable from the injury for which she had elected

workers’ compensation benefits through a settlement agreement).

      And, as a direct party to the settlement agreement, Zenith is entitled to

enforce its terms to avoid any payment obligation to the estate arising from the

insurance it provided to Lawns. See Philip J. Padovano, Florida Civil Practice §

11.6 (2014 ed.) (“A settlement agreement creates new contractual rights and duties

which may be enforced in place of the underlying claims and defenses.”).

      Nevertheless, the estate contends that the release is not binding on Ms.

Morales because she signed the settlement agreement in her capacity as parent and

guardian of four minor children (rather than in her individual capacity or her

capacity as personal representative of Morales’ estate), and that it is not binding

with respect to the minor children’s tort claim because the probate court did not

approve it and the children were not represented by guardians ad litem.


                                        - 13 -
      However, to accept the estate’s argument would require us to ignore Florida

law governing the way in which workers’ compensation claims are made and

settled. Specifically, in a case such as this one involving an employee’s death as a

result of employer negligence, the employer’s statutory workers’ compensation

liability is “exclusive and in place of all other liability . . . of such employer to any

third-party tortfeasor and to the employee, the legal representative thereof, husband

or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover

damages from such employer at law or in admiralty on account of such injury or

death.” § 440.11(1), Fla. Stat.

      Florida’s Workers’ Compensation Law fixes the amount of compensation

for the employee’s death that is due to the employee’s statutory beneficiaries,

including the spouse and children. See § 440.16, Fla. Stat. Surviving spouses, like

Ms. Morales, may make a claim for the available statutory benefits. See Blackburn

v. Taylor, 566 So. 2d 915, 916 (Fla. 1st DCA 1990) (recognizing that a “surviving

spouse” of a deceased employee is entitled to claim workers’ compensation

benefits). Further, the Workers’ Compensation Law allows a claimant who is

represented by counsel, as Ms. Morales was, to settle such a claim, as Ms. Morales

did. See § 440.20(11)(c)-(d), Fla. Stat.

      In this case, it is undisputed that the settlement agreement complied with

Florida’s Workers’ Compensation Law and was approved by the judge of


                                           - 14 -
compensation claims. The fact that the estate subsequently obtained a tort

judgment against Lawns that should have been prohibited by both the release and

workers’ compensation immunity does not somehow prevent Zenith from

enforcing the remedy Ms. Morales elected.

      Accordingly, we hold that the release precludes the estate from collecting

the tort judgment from Zenith and therefore answer the third certified question in

the affirmative.

                                 CONCLUSION

      For the foregoing reasons, we answer all three certified questions in the

affirmative. Having answered the certified questions, we return this case to the

United States Court of Appeals for the Eleventh Circuit.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and PERRY,
JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Certified Question of Law from the United States Court of Appeals for the
Eleventh Circuit - Case No. 12-11755

Lee Delton Gunn, IV, of Gunn Law Group, P.A., Tampa, Florida, and Tracy
Raffles Gunn of Gunn Appellate Practice, P.A., Tampa, Florida,

      for Appellants




                                       - 15 -
Ira William Spivey, II and Courtney M. Keller of Greenberg Traurig, P.A.,
Orlando, Florida, and Elliot H. Scherker, Julissa Rodriguez, and Jay Andrew
Yagoda of Greenberg Traurig, P.A., Miami, Florida,

      for Appellee

William Harris Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A.,
Winter Park, Florida, on behalf of The Florida Association of Insurance Agents;
Katherine Eastmoore Giddings and Nancy Mason Wallace, Akerman LLP,
Tallahassee, Florida, and William Wells Large, Tallahassee, Florida, on behalf of
the Florida Justice Reform Institute, et al.; Rayford Huxford Taylor of Casey
Gilson P.C., Atlanta, Georgia, on behalf of Associated Industries of Florida, Inc.,
et al.;

      for Amici Curiae




                                      - 16 -
