Morgan’s Tip of the Week- Prevailing Party Costs


In the 2015  Jennings v. Habana case (link below), the 1st DCA established that prevailing party costs are separate and distinct from claimant’s attorney fees.  The DCA opined that if the Employer/Carrier provides any benefits after a Petition for Benefits is filed, the claimant “prevailed”.   The court felt this was the case even if the PFB was responded to timely, 30 days had not elapsed, and there were no claimant attorney fees due or owing.  Arguably even if you respond to the PFB the same day it is filed and agree to provide the benefits, under the 1st DCA’s logic, the claimant is the “prevailing party”.

Since that time, most adjusters correctly have altered their timely responses to PFB’s providing a benefit to state something in the nature of:

  • No attorney fees due or owing, the E/C stipulates to pay taxable costs upon proof.

However, there is a key distinction before we agree to pay costs.   The claimant has to “prevail” on a benefit requested.   If you are already providing or have provided the benefits on the PFB, they did not “prevail” and you do not need to stipulate to costs.  For example if the PFB requests an MRI and it is already authorized and scheduled, the claimant did not “prevail” and you do not need to stipulate to costs.  If you intend to authorize it, but just haven’t yet when the PFB is filed, then the claimant did “prevail” and you should stipulate to costs. 

The same is obviously true if the claim is denied or if you are denying all the requested benefits on the PFB.  You do not need to stipulate to costs unless you provide a benefit that has not already been provided or authorized.

Here is the Jennings case:


Morgan Indek | Managing Partner