FL Case Law Summaries – 10/24/16
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UPDATE ON ATTORNEY’S FEES – HOW MUCH ARE THE COURTS AWARDING?
The following is an update on JCC and DCA attorney fee decisions published in September 2016, subsequent to the Florida Supreme Court’s opinion in Marvin Castellanos v. Next Door Company, et al, 192 So. 3d 431 (Fla. 2016).
Many of these decisions focus on the appropriate hourly rate for attorney fee time in a specific District or for a particular attorney.
SEPTEMBER 2016 CASES
JCC ORDERS
Leonardo Larios v. Corodo Corporation/North American Risk Services and Seabright Insurance Company
JCC Forte; Ft. Lauderdale District; Order Date: September 2, 2016
OJCC Case: 04-020060IF; D/A: 7/1/2002
Claimant’s Counsel: D. Robert “Bobby” Wells
Employer/Carrier’s Counsel: Robert B. Griffis
Briefly: ATTORNEY’S FEES – JCC Forte denied entitlement to attorney’s fees and costs and rejected the claimant’s position that he is entitled to a fee that relates back to a 2011 Petition for Benefits.
Summary: A Petition for Benefits was filed on October 10, 2011, requesting follow-up care with Dr. Curcione. The Employer/Carrier filed a response on October 19, 2011, indicating that Dr. Curcione remained authorized and that the last visit the claimant had was on October 4, 2011.
Claimant’s counsel argued he is entitled to a fee related to the 2011 Petition for Benefits because doctor appointments were eventually scheduled by the Employer/Carrier. The JCC rejected this argument and noted the date of the Employer/Carrier’s Response to the Petition.
Juan Alvarez v. Sun City Produce, Inc./Gallagher Bassett Services, Inc.
JCC Anderson; Panama City District; Order Date: September 2, 2016
OJCC Case: 10-026550WWA; D/A: 10/11/2010
Claimant’s Counsel: Mark A. Touby
Employer/Carrier’s Counsel: Jorge A. Pena
Briefly: ATTORNEY’S FEES – JCC Anderson entered an abbreviated final evidentiary order finding claimant’s counsel is entitled to a reasonable fee from the Employer/Carrier for $20,000 and taxable costs. The JCC found the fee amount includes time spent proving fee entitlement.
Mauricio Mujica v. Catalina Hotel & Beach Club/Continental Indemnity Company
JCC McAliley; Port St. Lucie District; Order Date: September 2, 2016
OJCC Case: 13-017383RDM; D/A: 6/10/2013
Claimant’s Counsel: Monica de Feria Cooper
Former Claimant’s Counsel: Juan Lucas Alvarez
Employer/Carrier’s Counsel: Barbara K. Case
Briefly: ATTORNEY FEE LIEN – JCC McAliley found prior claimant’s counsel is entitled to a quantum meruit attorney fee based on one third of the guideline attorney’s fee from the settlement and found that prior claimant’s counsel’s representation did bear fruit in evaluation of the case once settlement discussions began during subsequent counsel’s representation.
Summary: The JCC found that prior claimant’s counsel was discharged without cause, and although prior claimant’s counsel did not feel a settlement was in claimant’s best interests at that time, the JCC found prior claimant’s counsel’s services resulted in a one third impact on the ultimate settlement value. The JCC noted that prior claimant’s counsel represented the claimant for over 13 months during which the claimant received over $100,000 in benefits.
Rebecca R. Rose v. Geico/Broadspire
JCC Sojourner; Lakeland District; Order Date: September 7, 2016
OJCC Case: 10-003205MES; D/A: 2/1/2010
Claimant’s Counsel: Mark G. Capron
Employer/Carrier’s Counsel: Bryan A. Lowe
Briefly: ATTORNEY’S FEES – JCC Sojourner awarded claimant’s counsel a fee of $13,365.00 based on 48.6 hours of attorney time at an hourly rate of $275 and noted no response to the Verified Petition was filed by the Employer/Carrier.
Michel A. Hernandez v. Allied Building Products Corp./Liberty Mutual Insurance Company
JCC Hogan; Ft. Lauderdale District; Order Date: September 9, 2016
OJCC Case: 11-001936GBH; D/A: 7/6/2010
Claimant’s Counsel: Mark Touby
Employer/Carrier’s Counsel: Adam Levy
Briefly: ATTORNEY’S FEES – JCC Hogan awarded an attorney’s fee in the amount of $166,215.00 based upon 474.9 hours of attorney time at a rate of $350 per hour.
Summary: The JCC noted the parties agreed the value of the benefits secured equals $1,193,228.37, and that the statutory fee is $120,072.84. Further, the JCC found the statutory attorney’s fee in this case would result in an hourly rate of $252.84 which the JCC determined to be unreasonable.
The JCC found the fee customarily charged in the locality of similar legal services is between $250-$450 per hour and that a reasonable hourly rate in this case is $350. The JCC also found the claimant’s counsel is well known in the legal community and enjoys an outstanding reputation.
Oscar Maldonado v. Waste Management, Inc./Gallagher Bassett Services, Inc.
JCC Weiss; Ft. Myers District; Order Date: September 12, 2016
OJCC Case: 15-003246JAW; D/A: 1/26/2015
Claimant’s Counsel: Salvatore J. Sicuso
Employer/Carrier’s Counsel: Sean L. Crosby
Briefly: ATTORNEY’S FEES – JCC Weiss awarded claimant’s counsel a reasonable fee of $53,025.00 based upon a total of 212.1 hours of attorney time at rate of $250 per hour.
Summary: The JCC noted that claimant’s counsel asserted the value of benefits secured was $16,076.57, the appropriate range was $350-415 per hour, and that a reasonable attorney’s fee in this circumstance was $90,387.00, based on 224.3 hours of attorney time. On the other hand, the Employer/Carrier asserted the value of benefits secured was $7,903.91, the appropriate rate was $250 per hour, and that a reasonable attorney’s fee in this circumstance was $27,000.00, based on 108 hours of attorney time.
The JCC also noted the Employer/Carrier conceded that the statutory fee does not result in a reasonable fee under these circumstances.
The JCC reviewed the evidence and accepted the testimony of the Employer/Carrier’s counsel that the appropriate hourly rate was $250 per hour. The JCC reduced the time affidavit of claimant’s counsel by 12.2 hours, leaving the total hours at 212.1 and awarded claimant’s counsel a reasonable fee of $53,025.00.
Doiyon Parson v. Cheney Brothers, Inc./Travelers Insurance, Charter Oak Fire Insurance Co.
JCC D’Ambrosio; West Palm Beach District; Order Date: September 13, 2016
OJCC Case: 11-008387MAD, 11-019512MAD; D/A: 10/17/2010
Claimant’s Counsel: William L. Contole
Employer/Carrier’s Counsel: Kurt A. Wyland
Briefly: ATTORNEY’S FEES; E/C’S TIME AND BILLING RECORDS – JCC D’Ambrosio found that defense counsel’s time records and billing records are not relevant to the claimant’s Petition for Attorney’s Fees, are privileged, and are not subject to disclosure.
Summary: The JCC cited various case law and found that billing records of opposing counsel are to be treated as privileged work product and that the parties seeking production must establish that the requested materials are actually relevant to a disputed issue, that the records sought are needed to prepare for the attorney’s fee hearing, and that substantial equivalent material cannot be obtained from another source.
Here, the JCC found that claimant’s counsel did not make a sufficient showing of relevance and/or need of defense counsel’s billing records. The claimant argued that no additional special showing is needed to obtain non-privilege, relevant information, and cited the case of Patton v. Geico General Insurance Company, 190 So. 3d 1047 (Fla. 2016).
In response, the JCC noted that in Patton, the Court held that the hours expended by counsel for the defendant insurance company “in a contested claim for attorney’s fees is relevant to the issue of the reasonableness of time expended by counsel for the plaintiff.” In this case, the JCC found the Employer/Carrier was not contesting the reasonableness of time expended by claimant’s counsel, but instead was contesting whether the billed task was relevant to the particular benefit secured. The JCC found this to be a distinguishing factor from the holding in Patton. The JCC found the billing records of defense counsel were not relevant to the claimant’s Petition for Attorney’s Fees and are privileged and not subject to disclosure.
Angela Suarez v. Doral Hospitality, Inc./PMA Insurance Company
JCC Weiss; Ft. Myers District; Order Date: September 14, 2016
OJCC Case: 11-023016JAW; D/A: 2/13/2011
Claimant’s Counsel: Monica de Feria Cooper
Employer/Carrier’s Counsel: Sal Richardson
Briefly: ATTORNEY’S FEE – JCC Weiss awarded an attorney’s fee of $2,800.00, and determined claimant’s counsel spent 11.2 hours of attorney time based on a rate of $250 per hour.
Summary: The JCC rejected the Employer/Carrier’s argument that $150 is reasonable and instead accepted claimant’s range of $250-$400 per hour. The JCC noted that some of the time was performed by an attorney with claimant’s counsel’s office who has only been a member of the Bar since 2014.
Rigoberto Solorzano v. Structural Formwork, Inc./Bridgefield Employers Insurance Company
JCC Castiello; Miami District; Order Date: September 14, 2016
OJCC Case: 15-001976GCC; D/A: 11/8/2014
Former Claimant’s Counsel: Michael D. Goldstein
Present Claimant’s Counsel: Paul R. Buechele
Employer/Carrier’s Counsel: Cristina Linares-Obeso
Briefly: ATTORNEY’S FEES; CHARGING LIEN – JCC Castiello ordered claimant’s present counsel to pay claimant’s prior counsel the sum of $1,675.00 in attorney’s fees owed pursuant to the charging lien imposed on the settlement proceeds, and the Employer/Carrier shall remain responsible for any sums not paid by the claimant or present claimant’s counsel. The JCC also determined that the reasonable hourly rate for the charging lien is $375 per hour.
Summary: The JCC found the parties failed to inform prior claimant’s counsel of the washout settlement and failed to protect his charging lien. Accordingly, claimant’s prior counsel sought to have all parties, the Employer/Carrier in particular, held responsible in quantum meruit for all time he has expended in litigation necessary.
Here, the JCC found the charging lien must be assessed against the claimant’s settlement recovery and that prior to being terminated, claimant’s prior counsel dedicated 4.6 hours in successful prosecution of the claimant’s case. The JCC found the $375 hourly rate sought by prior counsel is reasonable and appropriate.
Further, the JCC found that case law authority, including the case of Law Office of James E. Dusek, P.A., v. T.R. Enterprises, 644 So. 2d 509 (Fla. 1st DCA 1994), places responsibility on those who receive notice of a charging lien to pay prior claimant’s counsel – that being the claimant, his counsel, and the Employer/Carrier. The JCC also noted the mediation agreement in this case acknowledged the claimant’s obligation to satisfy the charging lien, but the agreement was only between the claimant and the Employer/Carrier. The JCC noted that claimant’s prior counsel was not a party to the mediation agreement and, therefore, was not bound by it. The JCC found that prior claimant’s counsel may seek recovery from any party who failed to protect his charging lien.
Accordingly, the JCC found the Employer/Carrier, claimant’s present counsel, and the claimant are jointly liable to claimant’s prior counsel for attorney’s fees and that claimant’s present counsel shall pay the sum of $1,675.00 to prior counsel in attorney’s fees owed for the charging lien and costs. The Employer/Carrier shall remain responsible for any sums not paid by the claimant or claimant’s present counsel.
Dora Llontop v. Ralph Lauren/CNA Insurance, and Corvel Corporation
JCC Holley; Jacksonville District; Order Date: September 16, 2016
OJCC Case: 15-013978WRH; D/A: 6/14/2015
Claimant’s Counsel: Steven Wilson
Former Claimant’s Counsel: Rayo Moreno & Kevin Gallagher
Employer/Carrier’s Counsel: Thaddeus Harrell
Briefly: ATTORNEY’S FEES – JCC Holley awarded former counsel for the claimant an attorney’s fee via a quantum meruit theory in the amount of $1,171.43 to be paid out of the $8,200.00 statutory fee permitted from the settlement amount of $74,500.00.
Summary: The claimant’s current counsel argued the claimant did not sign a written contract for the instant date of accident with the claimant’s former counsel and, therefore, there was no valid attorney fee lien. However, current counsel also acknowledged that an attorney-client relationship can be created by implied communication and action.
The JCC found there was at least an implied contract entered into by the claimant and her former attorney for the relevant accident date. The JCC found the signed contract of representation between the claimant and former counsel for two other claims satisfied the requirement that there was at least an implied understanding that the payment of attorney’s fee was contingent upon recovery.
The JCC found that termination of the prior attorney’s services was not “for cause” and that former counsel performed services significant in reaching settlement of the claim.
The JCC utilized the length time of representation to determine a fair split of fees as no other method was easily determinable or argued. The JCC noted former counsel represented the claimant for almost one month and that the statutory fee of $8,200.00 divided by seven months of legal representation resulted in the amount of fee awarded $1,171.43.
Olga Leon de Mesa v. Dollar Tree Stores, Inc./Sedgwick CMS
JCC Castiello; Miami District; Order Date: September 19, 2016
OJCC Case: 14-015941GCC; D/A: 3/14/2014
Claimant’s Counsel: William Haro, Kimberly Hill
Employer/Carrier’s Counsel: Warren Brown
Briefly: APPELLANT ATTORNEY FEES – JCC Castiello awarded the sum of $7,500 to appellate counsel, Kimberly Hill, following a global settlement wherein the parties requested a remand from the Florida Supreme Court.
Peter Portu v. City of Coral Gables/Johns Eastern, Inc./Corvel Corporation
JCC Kerr; Miami District; Order Date: September 22, 2016
OJCC Case: 16-001262MGK; D/A: 11/18/2009
Claimant’s Counsel: Paolo Longo
Employer/Carrier’s Counsel: Luis Estrada & Leopoldo Garcia
Briefly: ATTORNEY’S FEES – JCC Kerr denied the claim for entitlement to an attorney’s fee paid by the Employer/Carrier where there was no basis for payment of the benefits within thirty days of the Petition and the benefits were paid within 14 days of first knowledge by the E/C.
Summary: The claimant argued he is entitled to an attorney’s fee for obtaining impairment benefits based upon a 4% rating from Dr. Perloff and due to the Employer/Carrier’s failure to pay benefits within 30 days of the Petition for Benefits.
The Employer/Carrier argued that Dr. Perloff’s report, which was the basis for the Petition for Benefits, was based on an erroneous opinion that the claimant had a Class 3 impairment of 35% and that Dr. Perloff later withdrew this opinion at deposition. Further, the E/C argued that the assignment of an MMI date without an impairment rating is a benefit of no value; therefore, no payment can be made and no attorney’s fees were owed.
The JCC accepted the E/C’s argument and found it was undisputed that the first knowledge of either party of a 4% impairment assigned by Dr. Perloff was at his deposition. The JCC found the Employer/Carrier had no way of calculating the impairment rating and paid the correct rating within 14 days of knowledge as required by F.S. §440.15(3)(a).
Ula K. Peak v. Baycare Health System/Commercial Risk Management
JCC Rosen; St. Petersburg District; Order Date: September 22, 2016
OJCC Case: 10-015026SLR; D/A: 5/26/2010
Claimant’s Counsel: Bill Dickey
Employer/Carrier’s Counsel: Clara Arrington
Briefly: ATTORNEY’S FEES – JCC Rosen ordered the Employer/Carrier to pay $53,418.75 in attorney’s fees for the first Petition for Benefits and $500.00 for the second Petition for Benefits, and found the hourly rate of $275 is reasonable based upon 194.25 hours of attorney time spent.
Summary: The JCC noted this case was heavily litigated and the time spent included legal research, preparation and analysis of multiple pleadings, attendance at numerous evidentiary and non-evidentiary hearings, preparation for and attendance of no fewer than 15 depositions, two mediations, preparation, submission and analyses of trial memorandum, and attendance and prosecution of claims at a final hearing.
Ivenet Severe v. Wizard Services, Tropical Growers USA, Inc./Castlepoint Insurance/Tower Group
JCC Forte; Ft. Lauderdale District; Order Date: September 26, 2016
OJCC Case: 12-002054IF; D/A: 12/9/2011
Claimant’s Counsel: D. Robert “Bobby” Wells
Employer/Carrier’s Counsel: Stephanie A. Robinson
Briefly: ATTORNEY’S FEES – JCC Forte denied the claim for attorney’s fees and accepted the Employer/Carrier’s position that the requested medical treatment was authorized timely in response to both Petitions for Benefits and any delay in provision of follow-up medical care was due to the claimant’s failure to schedule an appointment at his convenience.
Summary: It was the claimant’s position that fee entitlement from the Employer/Carrier is due because although the Employer/Carrier responded to both Petitions acknowledging Dr. Goldberg and US Healthworks remained authorized, an appointment was not actually provided.
The Employer/Carrier explained that any delay in the provision of follow-up care was due to the claimant’s failure to schedule an appointment and that the authorized provider, US Healthworks, is a walk-in clinic with no particular requirement that the adjuster has to schedule the appointment before the claimant can be seen.
The JCC explained found is no legal precedent that requires a claims adjuster to schedule an appointment for follow-up care with an authorized provider such as in this case. The JCC found that Dr. Goldberg or any other provider at US Healthworks remained authorized to treat the claimant and any failure of the claimant to be seen was not due to the Employer/Carrier’s nonfeasance, but that of the claimant.
Vickie McCue-Smith v. Brookdale Senior Living/Gallagher Bassett Services, Inc.
JCC Humphries; Jacksonville District; Order Date: September 27, 2016
OJCC Case: 14-015176RJH; D/A: 4/24/2013
Claimant’s Former Counsel: Catherine Agacinski
Employer/Carrier’s Counsel: Thomas Vecchio
Briefly: ATTORNEY’S FEES – JCC Humphries denied the Verified Petition for Attorney’s Fees and found the evidence established that the Employer/Carrier timely agreed to pay the bills at issue within ten days after the Petition for Benefits was filed and there was no showing that the claimant secured an increase in benefits.
Summary: The JCC found the claimant’s former counsel failed to establish fee entitlement for the medical bills and an increase in the average weekly wage. The JCC found the evidence established that the Employer/Carrier agreed to pay the bills in a timely manner within ten days of the filing of a Petition for Benefits and as soon as the Employer/Carrier accepted the responsibility of payment of the bills, the claimant had no liability and the Judge of Compensation Claims was divested of jurisdiction.
Further, the JCC found former counsel for the claimant did not establish she is due a fee on allegedly unpaid amounts of disability benefits based on an increase in the average weekly wage. The JCC found that claimant’s former counsel failed to establish the Employer/Carrier did not correctly address the average weekly wage and pay benefits resulting from that adjustment. The JCC noted the Employer/Carrier timely responded to the Petition for Benefits conceding an increase in the average weekly wage and setting forth the amounts to be paid.
Reinaldo Molina v. Ryder/Old Republic Insurance Company
JCC Kerr; Miami District; Order Date: September 29, 2016
OJCC Case: 13-017976MGK; D/A: 9/30/2008
Claimant’s Counsel: Kevin Gallagher
Employer/Carrier’s Counsel: Robert Strunin
Briefly: ATTORNEY’S FEES – JCC Kerr awarded $26,625.50 in attorney’s fees based 86.4 hours of attorney time spent securing temporary partial disability benefits in the amount of $3,107.72.
Summary: The JCC found of $275-325 to be most reflective of the current rates in the community and awarded an hourly rate of $325 for Attorneys Gallagher and Germano, $300 per hour for Attorney Moreno, and $275 for Attorney Vasquez. The JCC noted the statutory fee would result in an unreasonable hourly rate of $5.00 per hour.
Cipriano Bustamante (Tapia) v. Six L’s Packing Company, Inc./Travelers Insurance Company, Charter Oak Fire Insurance Company
JCC Lazzara; Ft. Myers District; Order Date: September 29, 2016
OJCC Case: 11-027164JJL; D/A: 4/16/2011
Former Claimant’s Counsel: Travis J. McConnell
Claimant’s Current Counsel: Olimpia Boveda de Pena
Employer/Carrier’s Counsel: Trent D. Miller
Briefly: ATTORNEY FEE LIENS – JCC Lazzara denied the Motion to Determine Attorney’s Fee Lien either on a quantum meruit basis, or pursuant to F.S. §440.34(1), and found Mr. McConnell did not secure or obtain any benefits for the claimant as a result of his legal intervention and did not even offer legal advice as the claimant and Mr. McConnell never met until the day of hearing.
Summary: The JCC accepted the claimant’s testimony as credible and at no time did he intend to pursue any actions or claims against the Employer for whom he had worked many years. The JCC noted the claimant has no schooling and can only write his name. The JCC found the claimant would not have understood the documents he was signing and was quite adamant and emotional that he did not wish to take any action against his Employer for his injuries. Mr. McConnell did not dispute he had never met or spoken to the claimant, telephonically or by other means of communication, until the day of the subject hearing.
The JCC found there was no attorney-client relationship ever established by the claimant and Mr. McConnell. Even if there was an attorney-client relationship, the JCC also found that at no time did the claimant knowingly intend to take any action against the Employer. The JCC found Mr. McConnell filed a Petition for Benefits without the claimant’s knowledge or permission and that no benefits were secured that were otherwise being voluntarily provided by the carrier.
Lisa Moore v. Walmart Stores, Inc./Sedgwick CMS
JCC Kerr; Miami District; Order Date: September 30, 2016
OJCC Case: 10-015709MGK; D/A: 4/8/2009
Claimant’s Counsel: Pedro Guerrero
Employer/Carrier’s Counsel: Christopher Cleary
Briefly: CLAIMANT-PAID ATTORNEY’S FEES – JCC Kerr denied the Motion for claimant-paid attorney’s fees and found there was no evidence or documentation to show claimant’s counsel obtained benefits for his client.
Summary: The JCC noted that Attorney Guerrero claimed entitlement to the claimant-paid attorney’s fees as he spent significant time “facilitating” the provision of benefits and was actively engaged in ensuring the prompt and efficient provision of benefits, although there was no concern benefits could or would be suspended at any time.
The JCC found Attorney Guerrero did not separately obtain any benefits for his client and could not identify any benefits which were provided as a result of his efforts as opposed to those provided voluntarily by the carrier as part of a normal claims-handling process. The JCC recognized the parties were in agreement regarding the payment of a claimant-paid fee and the agreement of the parties should be awarded weight in any proceeding. However, the JCC found the underlying basis for the provision of attorney’s fees and costs must be in conformity with F.S. §440.34 and a stipulation alone cannot and does not empower the JCC to ignore the obligation imposed under F.S. §440.34(3)(a) to award fees only in a situation where benefits have been secured by an attorney.
The JCC found there was no entitlement to a claimant-paid attorney’s fee over and above the $78,750.00 in fees already paid to counsel ($38,750 by the claimant and $30,000 by the Employer/Carrier).