Carl LAWTON, et al., Petitioners, v. ALPINE ENGINEERED PRODUCTS, INC., Respondent, 498 So. 2d 879

McDONALD, Chief Justice. The Fourth District Court of Appeal has certified the following question as being of great public importance: DOES THE FLORIDA WORKERS’ COMPENSATION LAW PRECLUDE ACTIONS BY EMPLOYEES AGAINST THEIR CORPORATE EMPLOYERS FOR INTENTIONAL TORTS EVEN THOUGH THE INJURIES WERE INCURRED WITHIN THE SCOPE OF THEIR EMPLOYMENT? Lawton v. Alpine Engineered Products, Inc., 476 So.2d 233, 233 (Fla. 4th DCA 1985). We have jurisdiction pursuant to

article V,

section 3(b)(4), Florida Constitution. The question is identical to that certified in Fisher v. Shenandoah General Construction Co., 498 So.2d 882 (Fla.1986). In Fisher, although the certified question conferred jurisdiction upon this Court, we refrained from answering it as framed because we did not view the certified question as germane to the facts of that case. See Cleveland v. City of Miami, 263 So.2d 573 (Fla.1972). As in Fisher, we do not read the facts as set out in the instant complaint to allege a prima facie case of intentional tort.

Thus, we restate the certified question as follows: WHETHER AN EMPLOYER COMMITS AN INTENTIONAL TORT WHEN HE INSTRUCTS HIS EMPLOYEE TO OPERATE DANGEROUS MACHINERY WITHOUT WARNING THE EMPLOYEE ABOUT THE MACHINERY’S KNOWN HAZARDS. We answer in the negative and approve the result reached by the district court. Alpine Engineered Products purchased a punch press from Federal Press Company in 1972. In 1981 Carl Lawton, a punch press operator employed by Alpine, caught his hand in the press when a co-worker accidentally put the press into operation as Lawton attempted to adjust the machine.

The press crushed Lawton’s hand and caused the loss of all the fingers on that hand. Following the accident, Lawton applied for and received workers’ compensation benefits from Alpine’s insurance carrier and filed suit against Federal Press Company. During the course of discovery, Lawton learned that between February 1972 and August 1980 Alpine had received numerous written communications from Federal Press informing Alpine that, for safety reasons, point of operation guards should be provided on the press and that operators should be instructed about the various dangers involved in operating the press.

Thereafter, Lawton amended his complaint to include Alpine as a party. Eventually, Lawton amended the complaint another time to add a count alleging fraud against Alpine. Alpine moved for

summary judgment, arguing that workers’ compensation benefits constituted Lawton’s exclusive remedy. After a hearing, the trial judge granted Alpine’s motion and Lawton appealed. The district court affirmed the

summary judgment on the authority of its opinion in Fisher. As we stated in Fisher, the Florida Workers’ Compensation Act provides for the payment of compensation benefits whenever disability or death results from an injury arising out of and in the course of employment. § 440.09(1), Fla.Stat. (1979).

Section 440.11(1), Florida Statutes (1979), states that compensation under the act shall be the exclusive remedy available to such an employee. Lawton’s complaint acknowledges that he received his injuries in the course and scope of his employment. Lawton argues, however, that when Alpine demonstrated a willful and wanton disregard for the safety of its employees by ignoring the manufacturer’s warnings it committed an intentional tort. We disagree.

As we discussed more fully in Fisher, in order for an employer’s actions to constitute an intentional tort, the employer must either exhibit a deliberate intent to injure or engage in conduct which is substantially certain to result in injury or death. Fisher, at 883; Spivey v. Battaglia, 258 So.2d 815 (Fla.1972). This standard requires more than a strong probability of injury. It requires virtual certainty. Fish er, at 884. Clearly, the facts alleged in the third amended complaint cannot support a finding of such certainty.

Although the complaint may indeed allege a prima facie case of gross negligence, the act makes no distinction among degrees of negligence. Seaboard Coastline Railroad v. Smith, 359 So.2d 427 (Fla.1978); § 440.11, Fla.Stat. (1979). Therefore, workers’ compensation is Lawton’s only available remedy even if Alpine is guilty of gross negligence. Thus, we do not reach the question of whether intentional torts fall outside the purview of the act. Accordingly, we decline to answer the certified question as framed by the district court.

Instead, we answer the restated question in the negative and approve the result reached by the district court. It is so ordered. BOYD, OVERTON and EHRLICH, JJ., concur. ADKINS, J., dissents with an opinion, in which SHAW and BARKETT, JJ., concur.