FL Case Law Summaries – 2/21/17
By: Ryan M. Knight
Contributor: Thomas G. Portuallo
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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 January 2017, 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.
Jason Osborne v. The Mosaic Company and Gallagher Bassett Services
JCC Sojourner: Lakeland District Order Date: January 4, 2017
OJCC Case: 14-011393 JCC Order: Click Here
Claimant’s Counsel: Pat DiCesare Hourly Fee Awarded: $275.00 per hour
Summary: JCC Sojourner accepted the Employer/Carrier’s argument that no attorney’s fees were due after the accident was accepted as compensable because no further benefits were obtained. However, attorney’s fees were awarded from the date of representation through the date the Employer/Carrier accepted the accident as compensable.
Claimant’s Counsel was awarded $6,905.00 in fees as a result of 18.4 attorney hours at $275/hr and 24.6 paralegal hours at $75/hr. The Employer/Carrier was also ordered to pay $2,089.47 in costs.
William Moreira v. Petsmart and Indemnity Insurance Co. of North America
JCC Massey: Tampa Disctrict Order Date: January 5, 2017
OJCC Case: 12-009597 JCC Order: Click Here
Claimant’s Counsel: Monica Cooper Hourly Fee Awarded: Costs only
Summary: JCC Massey denied compensability of the accident at final hearing. The Employer/Carrier then filed a motion to tax costs against the Claimant. The Claimant was ordered to pay costs in the amount of $3,533.20 to the Employer/Carrier.
Emma Verdecia v. Aramark and Sedgwick CMS
JCC Rosen: St. Petersburg District (on behalf of JCC Castiello) Order Date: January 18, 2017
OJCC Case: 16-010649 JCC Order: Click Here
Claimant’s Counsel: William Haro Hourly Fee Awarded: $150 per hour (med only fee)
Summary: Claimant’s Counsel was successful in recovering costs in the amount of $14 from the Employer/Carrier which the JCC found “arose out of a medical only claim.” The JCC found that this recovery entitled Claimant’s Counsel to a separate fee under Fla. Stat. § 440.34(7). That section allows for a separate medical only fee to be awarded once per accident. That fee cannot exceed $1,500 based on a maximum hourly rate of $150/hr. The JCC awarded Claimant’s Counsel the maximum rate allowed under that provision.
Kerri Loafman v. Beyond Expectations and Patriot Risk
JCC Winn: Pensacola District Order Date: January 18, 2017
OJCC Case: 15-016168 JCC Order: Click Here
Claimant’s Counsel: Tom Ueberschaer Hourly Fee Awarded: $250 per hour
Summary: Claimant’s Counsel’s Verified Fee Petition requested an award of $23,055.00 based on 76.85 attorney hours at $300/hr. The Employer/Carrier contended that there was nothing novel, difficult, or out of the ordinary about this case. The Employer/Carrier suggested that $10,350.00 would be more reasonable based on the nature of the case. The JCC noted there was no evidence presented with regard to the monetary value of benefits secured and that it was not possible to determined the guideline fee amount. The JCC performed a Lee Engineering analysis and awarded $16,750 in fees based on 65.8 attorney hours at $250/hr and 5 paralegal hours at $60/hr.
Antonio Blanco v. Mattress One and Amtrust North America
JCC Kerr: Miami District Order Date: January 26, 2017
OJCC Case: 14-022567 JCC Order: Click Here
Claimant’s Counsel: Robert Krebs Hourly Fee Awarded: Denied
Summary: Claimant’s Counsel contended that the Employer/Carrier owed attorney’s fees related to both PFBs in this case. Both were subsequently denied by JCC Kerr. The first PFB sought authorization of a pain management physician. Claimant contended that because the appointment occurred on the 30th day after the PFB, rather than before the 30th day, attorney’s fees were owed. The JCC denied those fees because not only was the appointment set on the 13th day, but the appointment occurred within the 30 days allowed by the statute.
The Claimant also contended attorney’s fees were owed on the second PFB which requested an upward adjustment of the AWW. The Employer/Carrier paid indemnity benefits based off the AWW associated with the DOA initially alleged by the Claimant. After the Claimant was allowed to amend the date of accident, the Employer/Carrier timely adjusted the AWW to reflect that DOA and paid the difference. Nevertheless, the Claimant contended that it’s the Employer/Carrier’s burden to “properly administer the file” and that their failure to initially calculate the AWW on the correct DOA entitled the Claimant to fees and costs. This argument was denied based on the Employer/Carrier’s timely adjustment of the AWW after the Claimant was allowed to amend the DOA.
David Sneed v. Elite Auto Center of Gainesville and Guarantee Insurance
JCC Hill: Gainesville District Order Date: January 24, 2017
OJCC Case: 14-021356 JCC Order: Click Here
Claimant’s Counsel: Anthony Salzman Hourly Fee Awarded: $350 per hour
Summary: Claimant’s Counsel submitted a verified fee petition requesting $14,392.50 in attorney’s fees based on 40.8 attorney hours at $350/hr and 1.5 paralegal hours at $75/hr. The Employer/Carrier filed a notice of objection to this fee petition but failed to have it verified. Therefore, the JCC awarded the benefits requested by Claimant’s Counsel in the amount of $14,392.50.
Barbara Diaz v. Garda World Security and Broadspire
JCC Kerr: Miami District Order Date: January 24, 2017
OJCC Case: 15-014094 JCC Order: Click Here
Claimant’s Counsel: Gloria Garcia Hourly Fee Awarded: Costs Only
Summary: The Employer/Carrier moved to tax costs against the Claimant after filing a notice of resolution. The Employer/Carrier argued that a notice of resolution was tantamount to a voluntary dismissal and entitled the Employer/Carrier to costs. The JCC noted that a notice of resolution may entitle an Employer/Carrier to costs in certain situations but it is the burden of the Employer/Carrier to provide evidence that the resolution was in favor of the Employer/Carrier. Here, no evidence was presented and costs were therefore denied.
Michele Wright v. City of Jacksonville and Risk Management
JCC Holley: Jacksonville District Order Date: January 31, 2017
OJCC Case: 16-000894 JCC Order: Click Here
Claimant’s Counsel: Anne Deguzman and John Rahaim
Hourly Fee Awarded: $200 and $300 per hour respectively
Summary: The Employer/Carrier stipulated to Mr. Rahaim’s rate of $300 per hour. However, the Employer/Carrier argued that Ms. Deguzman’s rate should be $200 per hour rather than the $225 rate requested. The JCC agreed with the Employer/Carrier and awarded $9,100 in fees based on 7.1 hours at $300/hr and 34.85 hours at $200/hr.