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The family of Gerardo Gutierrez, a Miami-Dade County man who died after working at the deli counter at a Miami Beach Publix last March, has filed a wrongful death suit against the company. It claims the grocer’s ban on employees wearing masks last spring caused his exposure by a sick co-worker. (Michael E. Levine/Courtesy) Publix must respond to a lawsuit claiming a Miami Beach store employee died from COVID-19 last April because he was restricted from wearing a mask, a judge says.
The ruling Friday by Miami-Dade Circuit Judge Carlos Lopez follows pleadings by the supermarket giant that the dispute must be handled as a workers’ compensation claim rather than a lawsuit. Lopez did not elaborate on his decision that favors the estate of Gerardo Gutierrez, who was 70 when he died from the virus. Publix, which tried to have the litigation thrown out before it got very far, now must respond to it by Feb. 25. Gutierrez died one month after working at the deli counter for two days next to a co-worker who had symptoms of the disease, the litigation claims. The estate blames Publix for then banning Gutierrez and other employees from wearing masks, charging the business feared scaring its customers. Such COVID-19 litigation in Florida and across the country remains rare, experts say. One reason is that workers’ compensation laws in most states are written to provide employees with quick access to lost pay and medical care but, in a tradeoff, prevent them from suing over the injury. There are limited exceptions, such as when an employer deliberately caused the injury.
In the Gutierrez case, the estate argues Publix’s mask ban led to the man’s death. “During the very time period that Publix was touting its efforts to keep employees and customers safe, Publix was prohibiting employees from wearing personal protective equipment of any type despite the rapidly escalating COVID-19 virus,” wrote attorneys Michael E. Levine and A. Dax Bello of Miami. The suit states that on March 27 and March 28 Gutierrez worked beside a sick woman, who later tested positive for COVID-19. On April 2, Gutierrez was sent home and told to self-isolate. He was hospitalized April 10 and died April 28. It wasn’t until April 3 that the U.S. Centers for Disease Control and Prevention recommended that everyone cover their faces in settings where 6 feet of distancing is difficult to maintain, including supermarkets. Publix did not require employees to wear masks until April 20, said Levine, adding that Gutierrez, a father of four children, wanted to wear a mask and the company wouldn’t allow it. Gutierrez “continued to go to work each day because he believed Publix’s statements that it was taking all measures necessary to keep him safe,” the lawsuit reads. On Dec. 24, Publix’s lawyers filed a request for the court to dismiss the wrongful death claims on the grounds that they don’t belong in that venue. “It is axiomatic that the exclusive remedy for an employee injured in the course and scope of his or her employment is through workers’ compensation,” wrote Robert J. Grace, Jr. and four other lawyers. In response, Gutierrez’s side argued that the workers’ compensation argument is legally improper at this point, and it’s not a workers’ compensation matter in the first place.
Levine and Bello wrote that this “case does not arise from an accidental workplace injury or death.” Rather, they said, Publix is liable for Gutierrez’s death because of “negligence and intentional acts.”
“Prohibiting masks on the basis of not wanting to scare customers served to mislead employees to believe that masks had nothing to do with their personal safety and well-being,” the estate’s counsel argued on Jan. 29. They added, Publix “knew and/or had been warned that its mask prohibition would increase the risk of becoming infected with COVID-19 and/or spreading COVID-19 to others.” Last Wednesday, Judge Lopez held a hearing on Publix’s efforts to get the lawsuit tossed. He denied the company two days later.
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