FL Case Law Summaries – 7/7/16
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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 June 2016, 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.
Andrew Stancil v. Right Hand Man/ESIS WC Claims
JCC Massey; Tampa District; Order Date: June 2, 2016
OJCC Case: 09-010898MAM; D/A: 4/18/2009
Claimant’s Counsel: Michael Winer
Employer/Carrier’s Counsel: Derrick Cox
Briefly: GUARDIANSHIP ATTORNEY’S FEES – JCC Massey denied the claim for payment of guardian’s attorney’s fees and found that establishing or maintaining a guardianship serves many purposes in addition to enabling or allowing the handling of claimant’s rights, duties, or responsibilities under Chapter 440.
Summary: The JCC found the claimant was catastrophically injured in a compensable accident and due to his incapacity, claimant’s sister was appointed as plenary guardian of claimant’s person and property. Claimant’s guardian retained a law firm for the purpose of preparing and filing a required annual report of the guardian.
The JCC found that F.S. §440.34, under which fees are payable only based on benefits secured, is not applicable to these circumstances and cannot form the basis of an attorney’s fee award. Instead, F.S. §440.17 and applicable case law controls whether or not guardianship fees and expenses are payable by the workers’ compensation carrier.
The JCC found there was a lack of competent substantial evidence to demonstrate that services performed by the guardian’s law firm were incurred as a result of handling the claimant’s rights, duties, and responsibilities under Chapter 440. The JCC found that the guardian’s attorney performs many functions on behalf of the claimant that are wholly unrelated to Chapter 440 as evidenced by the attorney’s time records and testimony at trial.
The JCC found the reimbursement sought by the claimant is prohibited by the case of Southeast Concrete Floor v. Charlton, 584 So. 2d 574 (Fla. 1st DCA 1991), where the court specifically addressed guardianship fees and expenses and found they are awardable only to the extent they are incurred in and about the handling of the claimant/ward’s rights, duties, and responsibilities under Chapter 440, including, but not limited, to such activities as the collection of benefits under Chapter 440, obtaining medical services for the claimant, and representation of the claimant in proceedings before the Judge of Compensation Claims.
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.
Deborah Groves v. Beall’s Outlet, Inc./Sedgwick CMS
JCC Beck; Sarasota District; Order Date: June 14, 2016
OJCC Case: 07-004902DBB; D/A: 3/8/2006
Claimant’s Counsel: Lisa A. Kalo
Employer/Carrier’s Counsel: Thomas P. Vecchio
Briefly: ATTORNEY’S FEES – JCC Beck ordered the Employer/Carrier to pay attorney’s fees representing 220 hours of attorney time at $225 per hour and 21.5 hours of paralegal time at $75 per hour.
Summary: The JCC found that a statutory fee could not be exactly calculated because the value of some benefits at issue has not yet been determined. The JCC noted that both parties agree a guideline attorney’s fee would not be reasonable and, therefore, exceptional circumstances justified a departure from the statutory guideline fee.
The JCC noted the expert opinions on the fee amount customarily charged in the locality range from $200-300 per hour for attorney time and $50-75 for paralegal time. The JCC found that $225 is the fee customarily charged in the locality for attorney’s fee and $75 for paralegal time.
Cristina Cage, Plenary Guardian for Adam Cage v. Employee Staff, LLC/Zurich American Insurance Company
JCC Rosen; St. Petersburg District; Order Date: June 16, 2016
OJCC Case: 14-025635SLR; D/A: 2/11/2013
Claimant’s Counsel: Stacy Ortiz
Employer/Carrier’s Counsel: Kathryn Letzter
Briefly: GUARDIANSHIP FEES – JCC Rosen denied the claim for payment by the Employer/Carrier for costs of guardianship fees and found the circuit court judge’s appointment of an examining committee in the guardianship proceedings was immaterial to the workers’ compensation claim.
Summary: The claimant argued that based upon the case of Artigas v. Winn-Dixie Stores, Inc., 544 So. 2d 1051 (Fla. 1st DCA 1989), the Employer/Carrier should be responsible for the $2,500 Examining Committee bill for fees and costs spent in establishing a guardianship in circuit court because the Employer/Carrier’s initial Motion to Determine Competency and/or appointment of Guardian was the catalyst for the ultimate guardianship proceeding in circuit court.
The JCC rejected this argument and found the fact the employee’s wife was formally established as his legal guardian in the circuit court proceedings was immaterial to the Employer/Carrier’s continued provision of indemnity benefits to the employee’s wife.
The JCC explained that, prior to the circuit court proceeding, based upon the Employer/Carrier’s Motion to Determine Competency and/or for appointment of a Guardian, the JCC exercised discretionary authority under F.S. §440.17 and determined that a formal Guardian was not necessary, and that the employee’s wife had provided greater weight and preponderance of the evidence that she should be the person appointed to receive the workers’ compensation indemnity benefits.
Cathy Pitts v. Marion County Public Schools/Johns Eastern Company
JCC Hill; Gainesville District; Order Date: June 20, 2016
OJCC Case: 13-014264MRH; D/A: 4/14/2009
Claimant’s Counsel: Daniel Hightower and Barbara Richard
Employer/Carrier’s Counsel: Debrah Zeitler
Briefly: ATTORNEY FEES – JCC Hill awarded attorney’s fees of $300, for 1.2 hours of attorney time at $250 an hour for preparation and attendance at claimant’s deposition when no Petition for Benefits was pending. The JCC denied the Verified Petition of Attorney’s Fees in all other respects.
Summary: It was undisputed the claimant is entitled to attorney’s fees for attendance at claimant’s deposition without a pending Petition for Benefits.
The JCC accepted the Employer/Carrier’s attestation that $250 an hour is a reasonable rate for Ms. Richard’s time and found none of Mr. Hightower’s time was awardable as he did not attend claimant’s deposition. The JCC found Ms. Richard properly spent 1.2 hours of attorney fee time and concluded costs are not awardable under F.S. §440.30, Florida Statutes.
Shantell Stepps-Bing v. AJ Wright/Zurich American Insurance Company
JCC Humphries; Jacksonville District; Order Date: June 22, 2016
OJCC Case: 09-031005RJH; D/A: 11/4/2008
Claimant’s Counsel: James McCall
Employer/Carrier’s Counsel: Haley Folmer
Briefly: ATTORNEY’S FEES – Following review of various Lee Engineering factors, JCC Humphries awarded claimant’s counsel $19,642.50 as an attorney’s fee for securing medical and disability benefits, based upon a $225 hourly rate and 87.3 hours of attorney time. Claimant’s counsel requested an hourly fee based upon 124.2 hours of attorney time at $250 per hour.
Summary: The JCC reviewed the time affidavit of claimant’s counsel, the response and objections filed by the Employer/Carrier, as well as the expert witness testimony of Attorney Jonathan Israel in behalf of the claimant and Attorney Thomas Portuallo in behalf of the Employer/Carrier.
The JCC adopted the concerns expressed by the Employer/Carrier’s expert witness about the lack of specificity and compound nature of most of the “block billing” time entries submitted by claimant’s counsel. Although Mr. Portuallo recommended that all “block billing” entries should be stricken, the JCC found the Employer/Carrier took no affirmative steps prior to the hearing to seek more specific time entries from claimant’s counsel.
The JCC made deductions to the time entries based upon work considered to be administrative or secretarial in nature, work performed substantially prior to the filing of the Petition for Benefits at issue, and work performed after fee entitlement was determined. The JCC also made appropriate adjustments for time unnecessarily expended including some of the time identified as “preparation for hearing”. After considering these factors as well as the other Lee Engineering factors, the JCC found that an hourly-based attorney fee was due.
Danny Cox v. Emergency One, Inc./Travelers Insurance
JCC Hill; Gainesville District; Order Date: June 23, 2016
OJCC Case: 15-009362MRH; D/A: 2/12/2015
Claimant’s Counsel: Barbara Richard
Employer/Carrier’s Counsel: Justin Crum
Briefly: ATTORNEY’S FEE – JCC Hill awarded $250 in attorney’s fees, based on one hour of attorney time at a rate of $250 per hour, for preparing and filing a Motion to Compel.
Summary: It was uncontested that the claimant was entitled to attorney’s fees for prevailing on a Motion to Compel. Claimant’s counsel initially requested 7.2 attorney hours at a rate between $250-350 per hour. The Verified Fee Petition was denied in all of the respects.
Henry Diaz v. Palmetto General Hospital/Sedgwick CMS
JCC Kerr; Miami District; Order Date: June 24, 2016
OJCC Case: 11-002425GCC; D/A: 5/10/2010
Claimant’s Counsel: Martha Fornaris
Employer/Carrier’s Counsel: Cindy R. Galen
Briefly: ATTORNEY’S FEES – JCC awarded the claimant $42,000.00 in a reasonable, hourly attorney’s fees and found that claimant spent 120 hours pursuing benefits in the amount of $8,956.44. (The JCC did not set forth the hourly rate in the contents of the Order. However, $42,000 divided by 120 hours of attorney time results in a $350 per hour rate).
Elouise Booker v. Honeywell/Sedgwick CMS
JCC Rosen; St. Petersburg District; Order Date: June 24, 2016
OJCC Case: 14-000325SLR; D/A: 5/20/1992
Claimant’s Counsel: John H. Thompson
Employer/Carrier’s Counsel: Bruno DeZayas
Briefly: ATTORNEY’S FEES – JCC Rosen ordered $25,000 to be paid as claimant’s attorney’s fees, based upon 45 hours of attorney time for securing approximately $93,000 in benefits. The JCC found there was no hourly rate used as a guideline for determination of a reasonable fee and explained there was no hourly rate requested by the attorney for the claimant, nor was there an hourly fee established through pleadings from the Employer/Carrier. (The JCC did not set forth the hourly rate in the contents of the Order. However, $25,000 divided by 45 hours of attorney time results in a $555.55 per hour rate.)
Summary: The JCC noted the evidence did not provide an alternative method for determination of a reasonable fee for the claimant’s attorney. The JCC emphasized that no response to the claimant’s verified petition for attorney’s fees and costs was filed by the Employer/Carrier.