MIAMI – A circuit judge has rejected a Florida supermarket company’s motion to dismiss a wrongful death complaint that alleges the company’s initial policy against mask wearing led to an employee’s death from COVID-19.
Circuit Judge Carlos Lopez’s Feb. 5 decision gives the green light to a lawsuit filed by the family of Gerardo Gutierrez, a 70-year-old deli worker at a Publix grocery store in Miami who died in April 2020 after contracting the virus. The complaint alleges that the company’s no-mask policy at the beginning of the pandemic led to the death of Gutierrez, who was required to work maskless next to a co-worker who eventually tested positive for the coronavirus.
“As a result of Publix’s reckless policy, Gerardo Gutierrez was exposed to a co-worker infected with COVID-19, contracted the virus and later died alone in his room at Mt. Sinai Hospital in Miami Beach,” the original complaint states.
Publix sought dismissal of the lawsuit on the grounds that the state’s workers' compensation law provides the company with legal immunity in this case and prohibits its filing in circuit court, according to the company’s motion. In addition, the plaintiff’s complaint doesn’t merit an exception to the workers' comp law, the court filing argues.
A response by the plaintiff’s attorney, Michael Levine of the Miami firm Stewart, Tilghman, Fox, Bianchi and Cain P.A., contends that workers' comp immunity is an affirmative defense which can’t be used in a motion to dismiss the case. Guiterrez’s death is not an “accident,” so the workers' comp law does not apply, Levine argues.
“Publix has never done anything to accept responsibility for this absolutely backwards policy that it had in place,” Levine told the Florida Record. “Its competitors were taking the pandemic seriously back in March. Publix wasn’t.”
The plaintiff’s complaint alleges that the company initially didn’t allow its workers to wear masks to protect themselves from the coronavirus because company officials felt the sight of masks would scare away customers.
“I am not aware of any other company that, like Publix, prohibited its employees from making their own choices about how to stay healthy and prohibited the use of masks or personal protective equipment” during the onset of the pandemic, Levine said.
Levine questioned the state legislature’s move to pass legislation providing COVID-19 legal liability protections to businesses since an online coronavirus tracking tool found that COVID-19 cases in Florida involving conditions of employment number only 11.
“It seems to me that the real priority should be about addressing testing, vaccination distribution and, as far as folks who have lost their jobs … we should be helping those people get back on their feet,” he said. “... There is no flood of litigation.”