By: Gina Case, Associate, Sarasota

As a business, insurance companies seek to provide appropriate benefits while minimizing loss. With this in mind, the goal of any adjuster is to administer claims paying out what is due and weeding out what is not.  As with most things in life, however, it is not always clear which claims are legitimate and which are not.  Thus enters the defense attorney, to provide legal advice and navigate the peculiarities of both opposing counsel and claimant to afford the best possible outcome for the employer/carrier.

While defense attorneys are initially retained with this idea in mind, resistance to legal advice or failure to see the big picture in a particularly thorny situation can result in unfortunate consequences. Ultimately, as the carrier is the client, defense attorneys are bound by the decisions made by adjusters and their supervisors. 

That said, the prohibition against frivolous claims applies equally to frivolous defenses.   Pursuant to §440.32(2), Florida Statutes, if a defense is maintained or continued frivolously, “the cost of the proceedings, including reasonable attorney’s fees, shall be assessed against the offending attorney.”  Thus, it is within a defense attorney’s best interests to both provide sound legal advice and decline to maintain an untenable position before the Judge of Compensation Claims.

As confidence in a defense attorney’s counsel is therefore likely well founded, it is also likely advisable to heed the defense attorney’s advice. With the return of hourly attorney fees pursuant to Castellanos, it may not be cost effective to litigate “this” temporary indemnity issue or deny “that” claim.  The recent decisions in Westphal and Castellanos have changed the legal landscape to the extent that it may not allow Carriers to litigate claims as they were previously accustomed.  Nuisance value is no longer in the $2,500.00 to $5,000.00 range, but generally higher, depending, of course, on the accident, injuries, defenses and jurisdiction. Indeed, claimant’s counsel would rather take their chances litigating a small issue to secure attachment of hourly attorney fees than agree to accept a nominal fee of $500.00 to $1,000.00 on overall settlement of a case.  Thus, while a defense attorney may suggest a strategy that at first seems a bitter pill to swallow, keep in mind that our defense attorneys are looking out for the employer/carriers’ best interests.  Certainly, litigating a claim through to a Final Hearing is at times the best course of action.  Other times, however, it is not, and it is a defense attorney’s job to know the difference.