FL Case Law Summaries – 6/9/16
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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 since the Florida Supreme Court’s opinion in Marvin Castellanos v. Next Door Company, et al, 41 Fla. L. Weekly S 197 (Fla. April 28, 2016).
Many of these decisions focus on the appropriate hourly rate for attorney fee time in a specific District or for a particular attorney.
Henry Diaz v. Palmetto General Hospital/Sedgwick CMS
JCC Kerr; District; Order Date: May 3, 2016
OJCC Case: 11-002425GCC; D/A: 5/10/2010
Claimant’s Counsel: Martha D. Fornaris
Employer/Carrier’s Counsel: Vanessa Lipsky
Briefly: ATTORNEY’S FEES – On remand following the Castellanos decision, the JCC awarded the claimant $42,000 in fees based on a reasonable hourly rate of $350, including 120 hours spent pursuing $8,956.44 in benefits.
Summary: The Supreme Court of Florida on April 28, 2016, reversed and remanded this case in light of the Castellanos decision. The Supreme Court noted the Judge of Compensation Claims initially determined an hourly rate of $13.28 based upon 120 hours of work under the statutory guidelines pursuant to F.S. §440.34 which have since been found to be unconstitutional. The Supreme Court also noted the JCC initially found that a $350 hourly rate would have been reasonable.
Tiffany Pratt v. Miami-Dade County School Board/Gallagher Bassett Services, Inc.
JCC Spangler; Miami District; Order Date: May 10, 2016
OJCC Case: 14-028824EDS; D/A: 9/27/2013
Claimant’s Counsel: Pro se
Alleged Former Counsel for Claimant: James A. Walker
Employer/Carrier’s Counsel: Michael J. Ring
Briefly: CLAIMANT-PAID ATTORNEY’S FEES – JCC Spangler denied the Verified Motion for claimant-paid attorney’s fees and found there was no signed contract for representation between the claimant and Attorney Walker, and that Mr. Walker did not secure benefits or perform any service that contributed to the actual value of benefits secured or the settlement reached.
Summary: The JCC found there was no written agreement between the claimant and Mr. Walker regarding representation. The JCC cited Rule 4-1.5(f)(2), Rules Regulating the Florida Bar, requiring that even in the case of an implied agreement, as contended by Mr. Walker, that a lawyer may not participate in a fee generated by contingency unless the agreement to do so is reduced to a written agreement signed by the client. The JCC found there was no such written agreement and that, as a matter of law, a lien for fees does not exist until it is determined by a judge of competent jurisdiction that a claimant is responsible for attorney’s fees incurred in obtaining compensation benefits for a claimant.
The JCC also found that Attorney Walker never actually participated in the development or prosecution of the case and, at best, only consulted with the claimant on one occasion. The JCC found that since Mr. Walker never performed any services regarding the presentation of the claim, it would be virtually impossible for Mr. Walker to conclude that a discussion alone contributed to the actual settlement. The claimant denied ever entering into a contract of representation, written or otherwise, with Attorney Walker and insisted that Mr. Walker played no role in the settlement negotiations, and there was no testimony provided as to the discussion between the Employer and the claimant which eventually led to the settlement reached.
The JCC denied the claimant-paid fee and found Mr. Walker did not represent the claimant and was never part of the claim until after it was settled. The JCC also noted that Mr. Walker never appeared as an attorney of record in the matter, and filed no pleadings on the claimant’s behalf.
Patsey White v. Dade County School Board/Gallagher Bassett Services, Inc.
JCC Kerr; Miami District; Order Date: May 18, 2016
OJCC Case: 02-010865MGK; D/A: 7/23/2001
Claimant’s Counsel: Richard Chait
Employer/Carrier’s Counsel: David Goehl
Briefly: ATTORNEY’S FEE AMOUNT – JCC Kerr awarded an attorney’s fee based upon an hourly rate of $350 per hour and found this rate is reasonable for such efforts even “given the lack of complexity of the issues involved.”
Summary: Judge Kerr awarded $350 per hour to claimant’s counsel and found that claimant’s counsel had to overcome a continued defense of his claims by the Employer/Carrier and ultimately obtain benefits which were previously denied.
However, the JCC found the issues were not complex or unique, and the fact that counsel is a highly skilled professional practitioner with decades of experience and an excellent reputation within the Bar did not have a significant impact on the litigation of this specific case.
The JCC found claimant’s counsel spent a total of 20.2 hours of attorney time securing benefits at issue.
John O’Connor v. Indian River County Fire Rescue/Johns Eastern Company, Inc.
Appeal of the Order from JCC Robert L. Dietz
DCA Order Date: May 20, 2016
Case: 1D15-4986; D/A: 1/10/2015
Appellant’s Counsel: Michael J. Winer & Geoffrey Bichler
Appellee’s Counsel: William H. Rogner
Briefly: SANCTIONS; APPELLATE ATTORNEY’S FEES – The 1st DCA affirmed the JCC’s Order regarding costs but awarded appellate attorney’s fees paid by Appellant/Claimant’s counsel to the Appellee/Employer/Carrier and held that claimant’s counsel, although not deliberately trying to mislead the Court, pursued two separate proceedings arguing the same exact issue but under the guise of appealing a separate issue, demonstrating a lack of candor required by the Court.
Summary: The First DCA found the sole purpose of this appeal was not to challenge the ancillary cost order identified in the Notice of Appeal, but to use the appeal as a pretext for making constitutional arguments about the fee statute, despite the fact that counsel knew or should have known that the retainer and fee order was not reviewable in an appeal of an order arising out of an ancillary proceeding.
The 1st DCA held that at every opportunity appellant’s counsel had prior to filing the Initial Brief, counsel failed to make it clear to the Court that the appeal solely involved the retainer and fee order. The DCA noted the appellant filed three versions of the Notice of Appeal and in each version the appellant expressly indicated that the nature of the order on appeal involved a cost order.
The 1st DCA held that counsel’s lack of candor required the Court and the appellees to expend unnecessary time and effort on this appeal.
Guillermo Solis, Jr., deceased v. Lane Construction/Liberty Insurance Corporation
JCC Pitts; Orlando District; Order Date: May 20, 2016
OJCC Case: 15-027844NPP; D/A: 10/16/2015
Claimant’s Counsel: Basil Valdivia
Employer/Carrier’s Counsel: Ya’Sheaka Campbell Williams
Briefly: ATTORNEY’S FEE AMOUNT – JCC Pitts ordered a statutory attorney’s fee of $15,750, resulting in an effective hourly rate of $420 and rejected the Employer/Carrier’s position that a statutory fee is unconscionable in light of the benefits obtained and the time spent securing them.
Summary: The claimant’s attorney contended he is entitled to a guideline attorney’s fee based upon death benefits secured in the amount of $150,000, resulting in an attorney’s fee of $15,750.
The Employer/Carrier contended that a reasonable attorney’s fee would be $7,500, based upon 37.5 hours of attorney time at an hourly rate of $200.
In making his findings, the JCC noted that a reasonable hourly rate to be awarded to claimant’s counsel for handling this particular claim would be $250. Nevertheless, based upon the Lee Engineering analysis, the JCC found that the statutory fee of $15,750 resulted in an effective hourly rate of $420 but does not result in a windfall or in an hourly rate so high as to be considered unreasonable. The JCC stated that “although this fee is high, I find it is not so high that it is unreasonable or excessive.”
Mary Hektner v. School Board of Brevard County/Sedgwick CMS
JCC Dietz; Sebastian-Melbourne District; Order Date: May 23, 2016
OJCC Case: 13-014654RLD; D/A: 4/20/1995
Claimant’s Counsel: Toni Villaverde
Employer/Carrier’s Counsel: William H. Rogner
Briefly: APPELLATE ATTORNEY’S FEE – JCC Dietz awarded claimant’s counsel an appellate attorney’s fee in the amount of $7,500, representing 30 hours at $250 per hour.
Summary: Claimant’s counsel asserted that the appropriate hourly rate for attorneys in the JCC’s district is $350-$500 and requested a $375 per hour rate. Claimant’s counsel asserted this range is based on the Miami district and the “locality” should be defined as statewide for appellate attorney’s fees based on the location of the claimant’s attorney, and not the locality of the case.
The JCC rejected this argument and accepted the Employer/Carrier’s assertion that the appropriate range for appellate fees is $200-$375 in the Sebastian District and that based upon claimant’s attorney’s experience and qualifications, the range would be $225-$275 per hour. The JCC noted that claimant’s counsel is not board-certified and awarded an hourly rate of $250.
Erica Goeke v. Brown Boxer Pub and Grille/Summit Claims
JCC Spangler; Tampa District; Order Date: May 24, 2016
OJCC Case: 15-002090EDS; D/A: 9/20/2014
Claimant’s Counsel: John Sharpless
Employer/Carrier’s Counsel: Timothy Jesaitis
Briefly: CLAIMANT-PAID ATTORNEY’S FEES – JCC Spangler found the claimant-paid attorney’s fee as part of the washout settlement agreement was reasonable considering the amount of benefits actually secured for the claimant by counsel, even though claimant’s attorney did not seek to include the considerable value of benefits secured after a Petition for Benefits was filed in support of the fee.
Summary: The JCC noted that in this case, the attorney’s fee for which approval was sought was an amount equal to 25% of the gross amount of the settlement. The case settled for $75,000 and the amount of the requested fee for which approval was requested was $18,750, an amount greater than the guideline under F.S. §440.34(1).
The JCC reviewed payout records supplied post-hearing by the Employer/Carrier regarding payments to treating physicians, consulting physicians, testing, hospital fees for surgery and post-surgical care, and post-surgical treatment in the form of therapy and medications exceeding $100,000.00.
The JCC found that, if the claimant were being held fully responsible for attorney’s fees resulting from the amount of benefits accrued to her following the pursuit of the Petitions and the amount generated from settlement, the value of these benefits would be approximately $175,000, and would generate an attorney’s fee of approximately $18,750 based on the statutory guidelines provided in F.S. §440.34(1).
The JCC also noted that claimant signed an employment agreement for a contingency fee with the law firm at issue on December 5, 2014, wherein the claimant agreed to compensate the firm by paying a fee of 25% of any recovery or lump sum settlement up to one million dollars, if, as occurred in this case, the Employer/Carrier conceded compensability in its initial response to filing the Petition for Benefits and no final hearing occurred before the settlement was reached. The agreement also provided a clause which indicated the claimant agreed to waive the application of the statutory guideline provision of F.S. §440.34(1).
The JCC found the amount of the attorney’s fee requested for approval, $18,750, is a reasonable amount and coincides with the amount of fees requested pursuant to the retainer agreement. The JCC noted that claimant’s counsel’s presentation at the hearing was based strictly on the contract of employment. For reasons not clearly expressed in the claimant’s presentation, claimant’s counsel did not seek to include the considerable value of benefits (approximately $100,000) provided to the claimant by the Employer/Carrier after a Petition for Benefits was filed. The JCC found that in this case, the amount of benefits secured for the claimant by counsel provided a basis for an attorney’s fee under the schedule and that there was no need to go beyond the statutory guidelines to provide for the proper fee.
Terri McLennan v. Intelistaff Healthcare/ACE USA, ESIS WC Claims
JCC Almeyda; Miami District; Order Date: May 25, 2016
OJCC Case: 03-037650ERA; D/A: 8/24/2003
Claimant’s Counsel: Scott Gow
Employer/Carrier’s Counsel: Mercedes de los Santos
Briefly: ATTORNEY’S FEE AMOUNT – JCC Almeyda awarded an attorney’s fee of $31,530 representing 105.1 hours of attorney time at $300 per hour as testified by the Employer/Carrier.
Summary: JCC Almeyda found that a $300 hourly rate is reasonable under these circumstances and explained that while the case was not novel, there were several mediations. The JCC noted the defense firm is a well-established firm with experienced attorneys, and that claimant’s counsel did not mention board certification in his listing of qualifications. The JCC found the extent of the labor dedicated to prosecute this case indicates a lesser degree of experience in handling routine workers’ compensation matters and, given these factors, the hourly fee of $300 as testified by the Employer/Carrier is accepted as reasonable.
The JCC found the guideline amount is unreasonable in this case as it would result in an hourly rate of $76.76.
Charles Brown v. Sunbelt Welding, Inc.
JCC Lorenzen; Tampa District; Order Date: May 27, 2016
OJCC Case: 14-017124EHL; D/A: 12/9/2013
Claimant’s Counsel: Carl Feddeler
Employer’s Counsel: None
Briefly: ATTORNEY’S FEE – JCC Lorenzen ordered the Employer to pay claimant’s counsel $3,000 in attorney’s fees, representing 10 hours of attorney’s time at $300 per hour, and found the Employer failed to file a response to the affidavit or provide any other opinion on the customary hourly rate.
Summary: The JCC found the claimant’s counsel was entitled to an award of fees and taxable costs for the Employer’s failure to attend mediation on two occasions.
The JCC found the Employer never filed the mandatory response to the claimant’s motion and accepted claimant’s counsel’s statement of time and costs as true and correct. The JCC found the $300 per hour rate did not “shock” her conscience
Additionally, the JCC found that claimant’s counsel was very experienced in the field of workers’ compensation and has an excellent reputation.
Scott J. Delia, Sr. v. Stewart Stiles Truck Line, Inc., Transport Industries LP/Liberty Mutual Insurance
JCC Hill; Gainesville District; Order Date: May 27, 2016
OJCC Case: 05-026159MRH; D/A: 2/10/2005
Claimant’s Counsel: Daniel Hightower
Employer/Carrier’s Counsel: Cynthia Denker
Briefly: ATTORNEY’S FEE – JCC Hill rejected the Employer/Carrier’s argument that claimant is not entitled to attorney’s fees because the physical therapy ultimately authorized was for a different duration than originally requested. The JCC awarded attorney’s fees based on attorney time of 5.7 hours at an hourly rate of $350 per hour and paralegal time at $85.00 per hour.
Summary: The JCC found the Employer/Carrier delayed in providing the physical therapy recommended by the authorized physician and that the only reason Dr. Clunn recommended physical therapy for a different duration during her deposition was in an attempt to get the Employer/Carrier to authorize some amount of physical therapy. The JCC explained that to accept the E/C’s argument that Claimant is not entitled to attorney fees for obtaining physical therapy simply because the duration authorized was different from that originally requested would contravene the legislative intent that the workers’ compensation system be self-executing and that needed benefits are promptly provided to the injured worker.
The JCC accepted claimant’s counsel’s position that a reasonable hourly rate for his time was $350 per hour and that a reasonable rate for paralegal time was $85 per hour. The JCC found the Employer/Carrier did not address the reasonable hourly rate or the reasonable number of hours expended, and did not challenge the amount of taxable costs requested by the claimant. Consequently, the JCC accepted claimant’s counsel’s affidavit on these issues as uncontested.
Manuel Moscoso v. City of Tampa Fire Rescue/Commercial Risk Management, Inc.
JCC Massey; Tampa District; Order Date: June 2, 2016
OJCC Case: 12-005667MAM; D/A: 10/2/2011
Claimant’s Counsel: Tonya A. Oliver
Employer/Carrier’s Counsel: L. Gray Sanders
Briefly: ATTORNEY’S FEES – JCC Massey awarded an attorney’s fee in the amount of $10,560 based on an hourly attorney rate of $275 per hour and noted a guideline fee in this case would yield an hourly rate of $59.75, which would be manifestly unfair and unreasonable.
Summary: The JCC noted this case involved a total denial of compensability under the heart/lung presumption contained in F.S. §112.18. Although the JCC found this claim was not particularly novel or complex, the JCC also found the nature of presumption cases and the sometime tricky medical issues involved require a higher than average level of skill to navigate properly.
The JCC’s order amended a prior order dated May 20, 2016, denying attorney’s fees.