Florida Statutes

Fla. Stat. § 440.04 (2025)

Waiver of exemption.

✓ 2025 Florida Statutes — current through the 2025 Regular Session

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440.04 Waiver of exemption.—

(1) Every employer having in her or his employment any employee not included in the definition “employee” or excluded or exempted from the operation of this chapter may at any time waive such exclusion or exemption and accept the provisions of this chapter by giving notice thereof as provided in s. 440.05, and by so doing be as fully protected and covered by the provisions of this chapter as if such exclusion or exemption had not been contained herein.

(2) When any policy or contract of insurance specifically secures the benefits of this chapter to any person not included in the definition of “employee” or whose services are not included in the definition of “employment” or who is otherwise excluded or exempted from the operation of this chapter, the acceptance of such policy or contract of insurance by the insured and the writing of same by the carrier shall constitute a waiver of such exclusion or exemption and an acceptance of the provisions of this chapter with respect to such person, notwithstanding the provision of s. 440.05 with respect to notice.

(3) A corporate officer who has exempted herself or himself by proper notice from the operation of this chapter may at any time revoke such exemption and thereby accept the provisions of this chapter by giving notice as provided in s. 440.05.

History.—s. 4, ch. 17481, 1935; CGL 1936 Supp. 5966(4); s. 2, ch. 18413, 1937; s. 2, ch. 29778, 1955; s. 4, ch. 70-148; s. 2, ch. 74-197; s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312; s. 43, ch. 89-289; s. 56, ch. 90-201; s. 52, ch. 91-1; s. 98, ch. 97-103.

Notes of Decisions

Cited in 25 cases, 1952–2016 · leading case: Allen v. Est. of Carman, 281 So. 2d 317 (Fla. 1973).

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Allen v. Est. of Carman, 281 So. 2d 317 (Fla. 1973). · cites it 23× “*321 However, by taking either of the steps contemplated by Fla. Stat. § 440.04 , F.S.A., an otherwise exempt employer may elect to waive his exemption and place himself within the purview of the Act.”

Gulfstream Land & Dev. Corp. v. Wilkerson, 420 So. 2d 587 (Fla. 1982). · cites it 12× “Gulfstream alleges, however, that subsection 440.04(2), Florida Statutes (1973), provides immunity under these facts.”

Mandico v. Taos Const., Inc., 605 So. 2d 850 (Fla. 1992). · cites it 6× “However, pursuant to section 440.04, Florida Statutes (1983), [4] a person who is not otherwise considered an "employee" covered under chapter 440, but for whose benefit a contract of workers' compensation insurance has been secured, may be brought within the operation of the…”

Galen of Florida, Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997). · cites it 7× “However, under the "Waiver of Exemption" provision, section 440.04, Florida Statutes (1967), the employer could waive the exemption by obtaining coverage.”

Lowry v. Logan, 650 So. 2d 653 (Fla. 1st DCA 1995). · cites it 6× “Under section 440.04, however, a party hiring a person who is excluded from the definition of "employee" under the act may elect to waive such exclusion and accept the provisions of Chapter 440 by giving notice of such election to the Division of Workers' Compensation, as…”

Thundereal Corp. v. Sterling, 368 So. 2d 923 (Fla. 1st DCA 1979). · cites it 5× “Thunderbird and Aetna deny Sothern's allegations and affirmatively allege that the exclusive remedy for Sothern's injuries was provided by the Florida Workmen's Compensation Act because compensation insurance had been provided for her under Section 440.04(2), Florida Statutes.…”

Rudolph v. Miami Dolphins, Ltd., 447 So. 2d 284 (Fla. 1st DCA 1983). · cites it 5× “At the time of the injuries to appellants, the Dolphins had not again served notice of its election to waive the statutory exemption pursuant to section 440.04, Florida Statutes. In addition to the collective bargaining agreement, the Dolphins, utilizing the NFL player contract…”

Proctor & Gamble Cellulose Co. v. Mann, 667 So. 2d 338 (Fla. 1st DCA 1995). · cites it 8× “The Mandico court interpreted section 440.04, Florida Statutes (1983), as granting an employer, which has in its "employ" an individual who is not included within the definition of "employee" under section 440.”

Rainwater v. Vikings Men's Hairstyling, 382 So. 2d 1313 (Fla. 1st DCA 1980). · cites it 7× “We think there can be no question that the purpose and effect of Fla.Stat. § 440.04, F.S.A., is to empower an exempt employer to voluntarily as *1315 sume the obligations and privileges of the Workmen’s Compensation Act and thereby insulate himself from common law liability…”

Florida Timber Prods. v. Williams, 459 So. 2d 422 (Fla. 1st DCA 1984). · cites it 2× “Prior to the accident he elected to secure workers' compensation coverage for himself pursuant to § 440.04(2), Fla. Stat., and obtained this insurance through appellant.”

FCCI Mut. Ins. Co. v. Cayce's Excavation, Inc., 675 So. 2d 1028 (Fla. 1st DCA 1996). · cites it 2× “04, Florida Statutes (1991), does allow for waiver of chapter 440 exclusions and exemptions when coverage specifically has been secured for work contemplated by the act, section 440.09(2) works to expressly exclude coverage when the nature of the work is covered by the LHWCA.”

Deen v. Quantum Resources, Inc., 750 So. 2d 616 (Fla. 1999). · cites it 3× “We find Mandico to be distinguished in that the provision of the Workers’ Compensation Law at issue in Mandico was section 440.04, Florida Statutes (1983), which provided that a person who was not otherwise considered an “employee” under chapter 440, but for whose benefit a…”

Show all 25 citing cases →

— 440.04(1) — 1 case

Proctor & Gamble Cellulose Co. v. Mann, 667 So. 2d 338 (Fla. 1st DCA 1995). “The Mandico court interpreted section 440.04, Florida Statutes (1983), as granting an employer, which has in its "employ" an individual who is not included within the definition of "employee" under section 440.”

— 440.04(2) — 14 cases

Gulfstream Land & Dev. Corp. v. Wilkerson, 420 So. 2d 587 (Fla. 1982). “Gulfstream alleges, however, that subsection 440.04(2), Florida Statutes (1973), provides immunity under these facts.”

Lowry v. Logan, 650 So. 2d 653 (Fla. 1st DCA 1995). “Under section 440.04, however, a party hiring a person who is excluded from the definition of "employee" under the act may elect to waive such exclusion and accept the provisions of Chapter 440 by giving notice of such election to the Division of Workers' Compensation, as…”

Thundereal Corp. v. Sterling, 368 So. 2d 923 (Fla. 1st DCA 1979). “Thunderbird and Aetna deny Sothern's allegations and affirmatively allege that the exclusive remedy for Sothern's injuries was provided by the Florida Workmen's Compensation Act because compensation insurance had been provided for her under Section 440.04(2), Florida Statutes.…”

Galen of Florida, Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997). “However, under the "Waiver of Exemption" provision, section 440.04, Florida Statutes (1967), the employer could waive the exemption by obtaining coverage.”

Allen v. Est. of Carman, 281 So. 2d 317 (Fla. 1973). “*321 However, by taking either of the steps contemplated by Fla. Stat. § 440.04 , F.S.A., an otherwise exempt employer may elect to waive his exemption and place himself within the purview of the Act.”

— 440.04(3) — 8 cases

Gulfstream Land & Dev. Corp. v. Wilkerson, 420 So. 2d 587 (Fla. 1982). “Gulfstream alleges, however, that subsection 440.04(2), Florida Statutes (1973), provides immunity under these facts.”

Strickland v. Al Landers Dump Trucks, Inc., 170 So. 2d 445 (Fla. 1964).

Rainwater v. Vikings Men's Hairstyling, 382 So. 2d 1313 (Fla. 1st DCA 1980). “We think there can be no question that the purpose and effect of Fla.Stat. § 440.04, F.S.A., is to empower an exempt employer to voluntarily as *1315 sume the obligations and privileges of the Workmen’s Compensation Act and thereby insulate himself from common law liability…”

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