Governor Crist has signed CS/HB 903. The Orlando Sentinel has the story here.
The bill takes effect on July 1, 2009. I have never known an amendment to §440.34 to be given retroactive effect. Thus, the amendment almost certainly will not apply to existing claims, but only to accidents which occur on or after July 1.
Constitutional challenges will surely follow. More later.
In this letter reprinted in the May 18 edition of the Palm Beach Post, Bill Herrle, the Florida executive director of the National Federation of Independent Business, urges Governor Crist to sign CS/HB 903. Mr. Herrle rejects as "unfounded" any fears that the bill will make it more difficult for injured workers to obtain representation in workers' compensation cases. And police and firefighters' unions which have urged a veto are just being "selfish" because a veto will "hamstring" small businesses with "unnecessarily high [insurance] rates."
But echoing the views expressed by Howard Troxler in his May 10 column, the editorial board of the St. Pete Times has called on Governor Crist to veto the bill in this May 18 editorial. The editors note that if an attorney can earn only $8 an hour, as in Murray, he simply will not take case - even when the employer/carrier clearly owes the benefits in question.
The clock is now ticking on any decision by Governor Crist to veto CS/HB 903. The legislature adjourned its session on May 8 and presented the bill to the governor on May 15. Thus, under Art. III, §8(a), Fla. Const., he must veto it within 15 days of the latter date, or by May 30, or it automatically becomes law. See Fla. Soc. of Ophthalmology v. Fla. Optometric Ass'n, 489 So.2d 1118 (Fla. 1986)(holding that this constitutional provision affords the governor 15 days from presentment to veto those bills submitted to him after the legislature has adjourned sine die).
In this column, Howard Troxler of the St. Pete Times has recommended that Gov. Crist veto several bills from the just-concluded legislative session, including CS/HB 903.
Gov. Crist visited the Clearwater Regional Chamber of Commerce last night and, according to "The Buzz," the political blog of the St. Pete Times, had this exchange with the president of the chamber:
“We’d really like to see you support House bill 903,” Bob Clifford, president of the Clearwater chamber, told Crist, who was accompanied by his wife, Carole.
“I better write it down then - what's it do?” Crist asked.
“Workers compensation.”
“Oh yeah, yeah, yeah,” Crist said, noting he met with Florida Chamber president Mark Wilson about it.
At the end, he was pressed again by another chamber official.
“Got it. Got it. I understand: 360, workers compensation. Got it in my notes,” Crist said, again making no promise.
I said in yesterday's post that unless there was some dramatic movement on the last day of the legislative session, the workers' compensation attorney's fee bills were dead. Well, there was some dramatic movement. In the final hours of the session, the Senate receded from CS/CS/SB 2072 and adopted C/S HB 903 by a vote of 22-16, with two members not voting. The vote split predictably along party lines, although 5 Republicans (Sen. Dockery (R-Lakeland), Sen. Garcia (R-Hialeah), Sen. Jones (R-Seminole), Sen. Peaden (R-Crestview), and Sen. Villalobos (R-Miami) broke rank and voted no, and 2 Democrats (Sen. Siplin (D-Orlando) and Sen. Smith (D-West Palm Beach)) voted yes. The Miami Herald has the story here, and the St. Pete Times has this coverage.
Why the last-minute shift? Who knows, but there had been rumors that the workers' compensation bill was being used by the Senate as a "bargaining chip" to get something from the House that it wanted, namely, this property insurance bill which the Senate favored over the comparable House version. The House adopted this measure yesterday by a vote of 80-35.
All eyes are now focused on Gov. Crist to see whether he will veto CS/HB 903. Under the Florida Constitution, he must veto the measure within seven days after its presentation, or within 15 days after its presentation if the legislature adjourns in the interim, or it automatically becomes law.
By a vote of 39-0, the Senate yesterday passed CS/CS/SB 2072, the so-called "Murray Compromise" bill. But on motion by Rep. Anitere Flores (R-Miami), the original sponsor of CS/HB 903, the House refused to concur. The bill is now "in messages" with a request by the House for the Senate to recede.
Today is the final day of the regular legislative session. Although a one-week extension of the session has been scheduled, that week will be used only to resolve budgetary issues. So unless there's some dramatic movement today, it looks as though these attorney's fee bills are dead.
The editorial board of the Palm Beach Post has endorsed CS/CS/SB 2072 - the so-called "Murray compromise" bill. Click here to read.
CS/CS/SB 2072 has now been voted favorably out of the Senate Committee on General Government Appropriations by a vote of 5-0. In addition to the changes to the original bill which I discussed in my April 18 post, the new committee substitute exempts from the restrictions of §440.34 fees for attorneys who successfully represent "first responders" in claims arising out of an "occupational disease" as that term is defined in §112.1815. As I discussed here, in 2007 the legislature made special provision for first responders with respect to occupational diseases.
The Senate Judiciary Committee's substitute for SB 2072 - CS/SB 2072 - has now been posted online by the legislature. As amended, the bill would:
By a margin of 8-1, the Senate Judiciary Committee voted favorably on SB 2072 yesterday, but with substantial amendments which had been offered by the trial bar. One amendment to the bill (549680) provides that the
fee payable under this subsection may be increased up to the fee paid by the employer or carrier to the employer’s or carrier’s attorneys if it is determined that the employer or carrier engaged in a bad faith denial of benefits, unreasonably delayed furnishing benefits that were due and owing, or unreasonably continued or increased the expense of litigation.
All committee members except Sen. Garrett Richter (R-Naples), the sponsor of the original bill, voted in favor. The bill now moves to the Senate Committee on General Government Appropriations which, as the News Service of Florida reports here, may restore the bill to its original form. The committee is set to take up the bill on April 20.
The Senate Judiciary Committee is set to consider SB 2072 its meeting on April 15. Still pending before the committee are two proposed amendments to the bill (690702 and 906380) which were filed on March 31.
The General Government Appropriations Committee is also set to consider the bill, but there's no word yet on when that will happen.
The News Service of Florida reports that Sen. Lee Constantine (R- Altamonte Springs), chairman of the Senate Judiciary Committee, has vowed that SB 2072 will come up for a vote in his committee despite yesterday's postponement. "We are not going to have a filibuster on this thing," said the chairman. He also reportedly criticized both sides of the debate over attorney's fees for failing to work hard enough to reach a compromise.
CS/HB 903 passed in the Florida House of Representatives on March 31 by a vote of 84-35. Several days earlier, the House rejected an amendment to the bill which would have (1) repealed §440.105(3)(c) which makes it unlawful for a claimant's attorney to receive a fee which has not been approved by the judge of compensation claims, (2) amended §440.20(11)(c) to permit a claimant's attorney to collect a fee from his client in connection with a settlement which is subject only to the limitations on fees imposed by the Florida Supreme Court, (3) amended §440.34(1) to provide for the award of a carrier-paid claimant's attorney's fee in cases where the benefits requested in a petition for benefits were not provided within 30 days of the carrier's receipt of the petition, (4) increased the permissible percentages for claimant's attorney's fees to 25% of the first $5,000 in benefits obtained, 20% of the next $5,000, and 15% of the remaining benefits secured, and (5) provided that in no event should the carrier-paid claimant's attorney's fee awarded be less than the fees charged by the carrier's lawyer for defending the claim.
Meanwhile, SB 2072, the Senate counterpart to the House bill, was due to be considered by the Senate Judiciary Committee on April 1 but was temporarily postponed. No official word yet on when the committee will take up the bill.
SB 2072, which is identical to CS/HB 903, passed the Senate Insurance and Banking Committee on March 25 by a vote of 6-3. It now moves to the Senate Judiciary Committee for consideration. An amendment to the bill proposed by Sen. Al Lawson (D-Tallahassee), the Senate Minority Leader, was defeated.
In the meantime, CS/HB 903 is headed to the House floor for a vote on Thursday, March 26.
SB 2072, which is identical to CS/HB 903, has now been placed on the Senate Banking and Insurance Committee's agenda for Wednesday, March 25.
Meanwhile, the Palm Beach Post editorialized against these bills in its Sunday edition.
Driving the furor over pending legislative attempts to limit the amount of claimant's attorney's fees are concerns over the effects those fees will have on the premiums charged to employers to obtain workers' compensation insurance coverage. Those premiums have decreased on average by 60.5% since the 2003 legislative reforms were enacted, including an 18.6% decrease for 2009. But after the Florida Supreme Court issued its decision in Murray v. Mariner Health last October, the Office of Insurance Regulation approved a rate increase of 6.4% to account for the costs anticipated to result from the decision.
Yet there appears to be another factor which is just as likely to drive up the cost of insurance - the fees which hospitals are allowed to charge under the medical fee schedule for medical care provided to injured workers. So says Joe Paduda in this post to his Managed Care Matters blog, and so says Florida TaxWatch in this recently released report. The problem? According to Paduda, under a proposed amendment to Fla. Admin. Code R. 69L-7.501, hospitals will be allowed to charge 74% more than Medicare for surgeries and almost four times more than Medicare for outpatient services.
The Committee Substitute for HB 903 - CS/HB 903 - is out. The revised bill: (1) deletes the detailed legislative findings of fact contained in the original bill; and (2) requires that claimant's attorney's fees be "equal to" the various percentages of benefits secured set out in the statute instead of, as in the original bill, allowing the fees to be "less than or equal to" those percentages.
The Miami Herald reports that the bill is now headed for a vote on the floor of the House as early as next week.
HB 903, with a committee substitute, was passed by the House General Government Policy Council on March 17 by a vote of 14-4. The committee substitute means that there will be some changes to the original bill, but as of this post, the revised bill is not yet available on the legislature's website.
Today's edition of the Miami Herald has this report on the bill. According to the Herald, Governor Crist has signaled his support of the bill.
HB 903 has been forwarded to the House General Government Policy Council, which will consider the bill on Tuesday, March 17.
HB 903 was passed out of the House Insurance, Business & Financial Affairs Policy Committee by a vote of 19-2. Meanwhile, SB 2280 was referred to the Senate Banking and Insurance Committee, the Senate Judiciary Committee, the Senate Committee on General Government Appropriations, and the Senate Rules Committee.
HB 903 has been retained by the House Insurance, Business & Financial Affairs Policy Committee. According to a representative of the committee that I spoke with this morning, the bill was passed by a vote of 19-2 yesterday, but a motion to retain the bill was heard and approved. The committee is scheduled to meet again on Thursday, March 12. If a motion to reconsider the bill is filed and passed at that meeting, the bill will be taken up by the committee anew. But if a motion to reconsider is not passed, or if such a motion is not filed, the bill will be passed out of committee. Its next stop would be the House General Government Policy Council.
HB 903, which would repeal the requirement that carrier-paid claimant's attorney's fees be "reasonable" and would require instead that they be "less than or equal to" a percentage of benefits secured by the attorney for his client, will be considered by the House Insurance, Business, and Financial Affairs Policy Committee on Tuesday, March 10. Proposed amendments to the bill must be submitted by 6:00 p.m. on Monday, March 9.
Given that the committee is comprised of 13 Republicans and 8 Democrats, and given that the ranking Democrat, Priscilla Taylor (D-W. Palm Beach), had originally introduced a similar bill herself (HB 311), I'd guess that this bill will have no trouble making it through committee.
On the opening day of the legislative session, Rep. David Rivera (R-Miami), introduced HB 1489 in the Florida House of Representatives. This bill would amend several sections of the Florida Workers' Compensation Law in ways that are generally more favorable to injured worker. It would:
For those of you into "Twitter," Sen. Dan Gelber (D-Miami Beach), the sponsor of SB 2280 and a candidate for the U.S. Senate, is "tweeting" (or is it "twittering"?) the 60-day legislative session which started today. You can follow his comments and send him your thoughts here: http://twitter.com/dangelber.
Hat tip to Ocala attorney Ken Hesser for alerting me.
Today's edition of the Miami Herald has this article about HB 903 and SB 2072, which would reverse the result reached by the Florida Supreme Court in Murray v. Mariner Health, and SB 2280, which would not.
Sen. Dan Gelber (D-Miami Beach) has filed SB 2280 in the Florida Senate in advance of the legislative session which is scheduled to begin next Tuesday, March 3. This bill would:
The bill would also leave undisturbed the result reached by the Florida Supreme Court in Murray v. Mariner Health because it does not amend §440.34(3)'s requirement that attorney's fees be "reasonable."
Sen. Garrett S. Richter (R-Naples) has filed SB 2072, another bill which would overturn the result of the Florida Supreme Court's decision in Murray v. Mariner Health. The bill is similar though not identical to HB 903, a bill which I discussed here. SB 2072 would:
Sen. Richter is chairman of the Senate Banking and Insurance Committee. And in this article the News Service of Florida reports that Rep. Larry Cretul (R-Ocala), the Speaker of the House of Representatives, supports both measures.
In another attempt to reverse the supreme court's ruling in Murray v. Mariner Health, Representative Anitere Flores (R-Miami) has filed HB 903 in the Florida House of Representatives. This bill would:
The bill contains legislative findings of fact, including a finding that Murray represents a "judicial nullification" of the legislature's reforms enacted in 2003 and that the bill is intended to "clarify beyond dispute that the reforms on awards of attorney's fees are an essential element of a functioning and self-executing workers' compensation system."
The News Service of Florida reports that discussions are underway about a legislative response to Murray v. Mariner Health. According to the report, the Senate Banking and Insurance Committee took testimony Tuesday from NCCI, a judge of compensation claims, and an actuary at the Office of Insurance Regulation, but didn't take any testimony from any attorneys, insurers, or employers.
The Service also quotes Sen. Garrett Richter (R-Naples), the Chairman of the Committee, as saying, "I've not seen a bill yet, but I understand the various parties are communicating with each other to come up with a satisfactory response."
HB 311 was withdrawn by its sponsor on 2/3/2004. The bill, which I wrote about here, would have repealed the statutory authority for judges of compensation claims to award carrier-paid attorney's fees to successful claimant's attorneys. No explanation for the withdrawal was given on the legislature's website. The legislature is scheduled to convene in regular session on 3/3/2009.
When an injured worker who is represented by counsel settles his workers' compensation claim for a lump sum, the JCC must review the attorney's fees charged to the claimant to ensure that they comply with the limited percentages for fees set forth in §440.34(1), Fla. Stat. On the other hand, the JCC lacks the authority to deny an award of attorney's fees based upon the amount of costs the attorney elects to charge his client. See Eshlibi v. Consolidated Box Mfg., a case which I discussed here.
So can the attorney charge his client extra for the time his paralegal spent on the case by categorizing that time as a "cost"? Nope. Paralegal time is required to be included in attorney time. Thus, it is included within the statutory fee which the lawyer can charge the client. See Demedrano v. Labor Finders of Treasure Coast, decided on 1/12/2009.
The court was careful to point out that its decision was not affected by last October's Florida Supreme Court decision in Murray v. Mariner Health. That case concerned a carrier-paid, not a claimant-paid, attorney's fee.
The Office of Insurance Regulation announced on 1/26/2009 that it will approve a request for rate increase by NCCI and will increase by an average of 6.4% the rates Florida employers are charged for workers' compensation insurance. Effective 4/1/2009, the increase was attributed to last year's Florida Supreme Court decision in Murray v. Mariner Health. NCCI had actually requested a rate increase of 8.9%.
You can read the Commissioner's actual order here. Press coverage is available here.
In an apparent attempt to undo last October's Florida Supreme Court decision in Murray v. Mariner Health, Representative Priscilla Taylor (D. West Palm Beach) filed HB 311 in the Florida House of Representatives on 1/13/2009.
This bill:
Representative Taylor's biographical page on the House website lists her occupation as "Owner, insurance agency."
The 11/15/2008 edition of the Florida Bar News has this story on Murray v. Mariner Health. And the Daytona Beach News-Journal has still more coverage in its 11/28/2008 edition.
The Palm Beach Post has this editorial from its 11/24/2008 edition applauding Murray v. Mariner Health.
NCCI has now projected that the Florida Supreme Court's decision in Murray v. Mariner Health will result in an average rate increase of 8.9% for Florida employers. Actually, they project an overall increase of 18.6%, but the full effect of the decision won't be felt for a couple of years. Here's the story from the 11/14/2008 edition of the Miami Herald. A hearing is set for December 16.
According to this story from the Tampa Bay Business Journal, NCCI is in the process of proposing higher workers' compensation insurance rates for Florida employers in light of the Florida Supreme Court's ruling in Murray v. Mariner Health. Although the 18.6% rate reduction previously approved by the Office of Insurance Regulation will go into effect on January 1 as scheduled, NCCI is proposing that new rates go into effect on March 1, 2009.
The 11/9/2008 edition of the St. Pete Times contains this editorial about the supreme court's recent decision in Murray v. Mariner Health. While generally lauding the decision as "a sensible ruling," the editor encourages the legislature to revisit the issue of attorney's fees in the upcoming legislative session. If by then there has been a "bump" in "legitimate claims," concludes the editor, then "it will be clear that the constraints on attorney fees had kept injured workers from getting the benefits they deserved."
Maybe so, but I see two problems with this reasoning. First, I don't know if it would be possible to conduct any type of empirical studies between now and March to determine whether there has been an increase in claims, let alone whether any such increase is attributable to Murray. Second, at least in theory, carrier-paid attorney's fees are never payable unless the claimant's attorney convinces a judge of compensation claims that the employer/carrier has wrongly denied benefits to the injured worker. Therefore, in that sense, all claims resulting in carrier-paid fees are "legitimate."
But critics of Murray would probably argue that the pre-2003 method of assessing carrier-paid attorney's fees sometimes resulted in the payment of fees even in cases involving "illegitimate" claims. In other words, because it's often unclear whether a claim is "legitimate" or "illegitimate," and because the amount of the attorney's fees can far exceed the amount of benefits at issue, carriers sometimes agreed to compromise questionable claims in order to avoid the possibility of being assessed an even larger fee should they be unsuccessful at trial.
Florida Insurance Commissioner Kevin McCarty has announced yet another decrease in workers' compensation rates for Florida employers in 2009. The average rate will decrease by 18.6%, bringing the average cumulative decreases in rates to 60.5% since the 2003 amendments to Ch. 440 were enacted.
Commissioner McCarty warned, however, that this decrease does not take into account the effects of the Florida Supreme Court's 10/23/2008 ruling in Murray v. Mariner Health. He expects NCCI to make a new filing in support of the rate impact which it believes will result from Murray.
Here's Insurance Commissioner Kevin McCarty's 10/24/2008 press release on Murray v. Mariner Health. And here's what Associated Industries of Florida has to say.
Yesterday's decision in Murray v. Mariner Health has generated a fair amount of press coverage and reaction from various industry groups. You can read coverage from the St. Pete Times here, from the Palm Beach Post here, and from the Insurance Journal here. The Florida Chamber of Commerce has also issued this statement warning of the consequences of the decision for Florida employers.
Given the strong industry reaction to the decision and given the fact that the court rested its decision on statutory construction grounds rather than addressing the constitutional challenges to the statute, I think it's a fair assumption that this issue will be hotly contested in the 2009 legislative session.
In what is surely the most widely followed workers' compensation case in several years, the Florida Supreme Court has invalidated the 2003 amendment to §440.34. The amendment purported to limit the attorney's fees which could be paid to prevailing claimants to a strict percentage of the benefits secured through the attorney's efforts. See Murray v. Mariner Health, decided on 10/23/2008. The court's ruling was 5-0. Justices Canady and Polston, recently appointed to the court by Governor Crist, did not participate in the decision.
Although the claimant had raised a number of constitutional challenges to the amendment, the court declined to rest its decision on those grounds. Rather, the court concluded that the statute was ambiguous because, while subsection (1) forbids the JCC from awarding attorney's fees in any amount other than a percentage of the benefits secured by the attorney, subsection (3) requires the JCC to award "a reasonable attorney's fee." And a fee which compensates an attorney at the rate of $8.11 per hour for his efforts is unreasonable. "Inadequate fees and excessive fees are not reasonable attorney's fees," said the court. Therefore, when awarding a carrier-paid claimant's attorney's fee under the statute, the court must use the factors enumerated in rule 4-1.5(b) of the Rules Regulating the Florida Bar.
Continue Reading...In what could be a foreshadowing of the court's eventual holding in Murray v. Mariners Health [Fla. S. C. Case No. SC07-244], the Supreme Court of Florida has held 4-3 that a statute which purported to place a cap on fees for attorneys representing death row inmates must be construed in a manner that ensures adequate representation of those inmates. See Maas v. Olive, decided on 9/25/2008.
Section 27.710, Fla. Stat., first enacted in 1998, authorizes the state to expend funds for private attorneys to represent death row inmates in postconviction proceedings. Section 27.711, Fla. Stat., however, caps the amount of fees that can be paid to such attorneys at various stages of the proceedings. For example, §27.711(4)(a) caps the fees at $100 per hour, up to a maximum of $2,500, for time expended "after accepting appointment and filing a notice of appearance." And §27.711(3) says that "[t]he fee and payment schedule in this section is the exclusive means of compensating a court appointed attorney who represents a capital defendant."
Continue Reading...In Franco v. SCI at the Palmer Club at Pestancia, decided on 8/27/2008, the First District reversed the JCC's order which had denied attorney's fees to the claimant's attorney at the expense of the employer/carrier. The court noted that the petition for benefits was accepted when payment was made, not when the forms indicating acceptance of the claimant's permanent total disability status were completed. Because the E/C failed accept or deny the petition within 14 days of its receipt, they were deemed to have denied the petition. And, because they failed to make payment of the benefits within 30 days of the date they received the petition, entitlement to an award of attorney's fees attached. The court also distinguished its previous decision in Zabik v. Palm Beach County School District, 901 So.2d 887 (Fla. 1st DCA 2005), noting that Zabik was decided under the pre-2003 version of the statute. Under the 2003 version of the statute with its statutory percentages, whether the attorney "employed more than minimal effort to procure benefits for the claimant" is irrelevant.
The standard of review employed by the First DCA is often critical to the outcome of the case. In Moore v. Hillsborough Co. School Bd., for example, the court noted that a JCC's decision denying costs and an upward departure from the statutory attorney's fee schedule (in a pre-2003 case) is reviewed for "abuse of discretion." Under that standard of review, the court held that the JCC did not abuse his discretion in refusing to depart from the statutory fee schedule and in failing to award costs associated with legal assistants where the claimant did not satisfy her burden of proving that the time spent by the assistants was nonclerical.
On the other hand, the court held that the JCC erred "as a matter of law" in declining to award reimbursement for certain deposition costs if the testimony was used in any way to support the award of benefits.
In civil cases where there is a statutory or contractual basis for an award of attorney's fees against the non-prevailing party, the courts also have the authority to award pre-judgment interest on those fees. See Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla. 1996). Interest runs from the date that entitlement to the attorney's fee becomes fixed even though the amount of those fees has not yet been determined.
Not so in workers' compensation cases, however. See Lee v. Wells Fargo Armored Services, 707 So.2d 700 (Fla. 1998). The reason for the difference, explained the supreme court in Lee, is that in workers' compensation cases entitlement to the fee does not become fixed, and therefore cannot be paid, until it is first reviewed and approved by the JCC.
But with the 2003 amendments to §440.34, the legislature took the guesswork out of determining the amount of fees to be paid to a successful claimant's attorney. As currently construed, that amendment requires that the amount of the fee be a specified percentage of the benefits secured by the attorney. Does this mean that the JCC may now award prejudgment interest on attorney's fees because the amount of fees has become "fixed"? Nope. That's what the First DCA said in Pruden v. Herbert Contractors, Inc., decided on 7/30/2008. The court held that notwithstanding the 2003 amendment, §440.105(3)(c) still prohibits the payment of a fee until it is approved by the JCC.
The ideological split among the current justices at the Supreme Court of Florida continued to show in three cases decided on 7/10/2008. In Florida Dept. of Environmental Protection v. Contractpoint Florida Parks, LLC, the court held 4-3 that §11.066(3), Fla. Stat., does not require a specific legislative appropriation before a state agency can be required to pay a valid judgment entered into for breach of contract with a private entity. In the majority were Justice Pariente, along with Chief Justice Quince, Justice Anstead, and Justice Lewis. Dissenting were Justices Wells, Cantero, and Bell.
In Wyche v. State, the court held 4-3 that a criminal defendant's saliva sample was not given involuntarily, and therefore not in violation of the Fourth Amendment, even though the police obtained the defendant's consent to giving the sample by telling him that he was a suspect in burglary A, when in fact there was no burglary A. The State later tried to use the sample to prosecute the defendant in burglary B. This time, Chief Justice Quince "switched sides" and voted with her three more conservative colleagues, Justices Wells, Cantero, and Bell.
And in Salazar v. State, Justices Bell, Cantero, and Wells, though concurring in the court's affirmance of the defendant's first degree murder conviction and death sentence, took issue with the standard of appellate review which should be afforded to a trial court's ruling on a motion for mistrial.
It'll be interesting to see whether and how this split plays out in Murray v. Mariners Health. That's assuming, of course, that the court decides the case before the departures from the court of Justices Cantero, Bell, Wells, and Anstead over the next several months, as I noted here.
One idea I heard bandied about after the enactment of the 2003 amendment to §440.34 was whether a successful claimant might avoid the fee limitations contained in the amendment by claiming entitlement to fees, in an appropriate case, under §57.105, Fla. Stat. That statute provides for the award of attorney's fees to the prevailing party "in any civil proceeding or action" in which the court concludes that "a claim or defense" either "[w]as not supported by the material facts necessary to establish the claim or defense" or "[w]ould not be supported by the application of then-existing law to those material facts." And, perhaps more importantly, it does not limit the amount of any such fees to a percentage of "benefits secured" by the attorney.
The statute does provide for the award of fees in administrative proceedings. See §57.105(5). And the First DCA has occasionally awarded appellate attorney's fees under this statute in workers' compensation appeals. See, e.g., Fumigation Dept. v. Pearson, 547 So.2d 352 (Fla. 1st DCA 1989).
But now, in Bell v. Weyerhaeuser, decided on 4/24/2008, JCC Lorenzen in Tampa has concluded that a judge of compensation claims lacks jurisdiction to award attorney's fees under this statute. Workers' compensation proceedings, she reasoned, are neither "civil proceedings" nor administrative proceedings under Ch. 120. Moreover, the Florida Workers' Compensation Law already contains a provision authorizing the award of attorney's fees for frivolous proceedings, to wit: §440.32, Fla. Stat.
Of course, the case on everyone's mind since I last posted is one that hasn't yet been decided - Murray v. Mariners Health, the case in which the Supreme Court of Florida is considering the validity of the 2003 amendment to §440.34, Fla. Stat.
The court held oral argument on 4/9/2008. Over the years, I've concluded that it's oftentimes dangerous to try to guess the outcome of a case based upon the questions coming from the bench. Nevertheless, I'll venture a guess here. Judging from the justices' questions to counsel, it seems to me that the court is poised to strike down this amendment. I'm less certain about whether they might do so on the basis of statutory construction or on constitutional grounds. Despite the fact that they had declined to consider the statutory construction question in several previous cases (Wood v. Florida Rock Industries; Lundy v. Four Seasons; Campbell v Aramark); they seemed particularly interested in this argument here. You can watch the oral argument by clicking below and judge for yourself (Windows Media Player required):
mms://146.201.215.129/Archives3wm/07-244.wmv
I mentioned in this post that the law firm which filed an amicus brief on behalf of the Florida Police Benevolent Association and in support of the claimant in the Emma Murray case had cited one of its own cases, Weimer v. City of Kissimmee, as an example of a situation where the claimant has been hindered in his ability to retain counsel of his own choosing as a result of the 2003 amendment to §440.34. In Weimer, the JCC refused to approve a contract between Wiemer and his attorney wherein Weimer agreed to pay his attorney an hourly fee instead of the percentage fee called for in §440.34, and Weimer filed a petition for writ of certiorari in that regard with the First District Court of Appeal.
The First District has now denied that petition in this 2/7/2008 per curiam affirmance.
Four More briefs have been filed in the Florida Supreme Court in support of the claimant's challenge to the constitutionality of the 2003 amendment to §440.34, Fla. Stat., in the case of Murray v. Mariners Health.
The first, filed by the Workers' Compensation Section of the Florida Bar, doesn't add much to the discussion. It simply suggests that the 2003 amendment is unconstitutional because it restricts access to courts. You can read the brief here.
The second, filed by the Florida Professional Firefighters, Inc., essentially adopts the "due process" argument set out in Point III of Murray's Initial Brief, which I wrote about here. The argument is that by restricting the amount of a "reasonable fee" to a percentage of the benefits secured by the attorney, the amendment creates an unconstitutional "irrebuttable presumption." The brief, which you can read here, also contains an interesting discussion of the history of workers' compensation laws in general and the Florida Workers' Compensation Law (Ch. 440, Fla. Stat.) in particular.
The third, filed by the Florida Police Benevolent Association, takes a slightly different approach. The brief, which you can read here, alleges that law enforcement officers who are beneficiaries of the "heart-lung bill" (§112.18, Fla. Stat.) are in fact unable to take advantage of this act of legislative largess because they are unable to find competent counsel willing to assist them when the amount of attorney's fees which can be awarded are restricted to a percentage of benefits secured. As an example, the attorney authoring the brief cites a case from his own firm, Weimer v. City of Kissimmee, OJCC No. 06-021829WJC. In that case, the attorney's firm had asked the JCC to approve an attorney's fee retainer agreement wherein the claimant agreed to pay the law firm an hourly fee rather than having the amount of the fee limited to a percentage of benefits secured. The JCC refused to approve the agreement in this order (worth reading), and as a result the law firm withdrew from representing the claimant further. As a result, says the FPBA, the 2003 amendment is unconstitutional because it impairs the right of the claimant to freely contract with an attorney of his choosing. (Parenthetically, although the law firm withdrew from representing the claimant before the JCC, the firm has filed a petition for writ of certiorari, currently pending before the First District Court of Appeal in Case No. 1D07-4549, which challenges the order refusing to approve the retainer agreement.
The fourth, filed by an individual claimant, David Singleton (Singleton v. Seminole County School Board, OJCC No. 07-010864WJC), continues that theme and alleges that he also has been unable to retain counsel of his choosing because of the attorney's fee limitations. Specifically, Singleton filed this petition for leave to retain the attorney of his choice based upon his agreement to pay the attorney an hourly fee, but in this order (worth reading) the JCC declined to approve the agreement. (As with Weimer, the JCC's order refusing to approve Singleton's retainer agreement is the subject of a petition for writ of certiorari currently pending before the First District Court of Appeal. See Case No. 1D07-5349). Singleton argues in his Murray brief that the 2003 amendment impairs his constitutional right to contract with the attorney of his choice. He also argues that the amendment denies him the right to counsel, access to courts, and equal protection. You can read Singleton's brief here.
The Honorable Richard W. Ervin, III, recently retired from his long tenure as a member of the First District Court of Appeal, has co-authored this amicus brief which has been filed in support of the petitioner in Murray v. Mariners Health and on behalf of Voices, Inc. According to the Statement of Interest contained in the brief, Voices, Inc., is "a nonprofit organization made up of injured workers and their supporters" whose purpose is "to guide injured workers and their families through the workers' compensation system and educate them to their rights under Florida law." Judge Ervin authored a concurring opinion in Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 506 (Fla. 1st DCA 2006), another case where the First DCA considered, then rejected, a challenge to the 2003 amendment to §440.34. I thought it would be interesting to compare and contrast the arguments raised in the amicus brief with those expressed in his earlier concurrence while sitting as a member of the Court.
In his concurring opinion in Lundy, Judge Ervin argued that the 2003 amendment is probably constitutional on its face, noting that many states require the claimant to pay his own attorney's fees even in cases where he prevails:
Continue Reading...I strongly doubt that the Florida worker's compensation attorney-fee statute, section 440.34(1), Florida Statutes (2003), could be subjected to a successful facial constitutional challenge,which requires the challenger to establish that no set of circumstances exists under which the statute could be determined valid in that such 'challenge considers only the text of the statute, not its application to a particular set of circumstances.' 932 So.2d at 510-11 (Ervin, J., concurring).
The Florida Justice Association (formerly known as the Academy of Florida Trial Lawyers) has filed an amicus brief in support of the petitioner in Murray v. Mariners Health. You can read their brief here.
Unlike the petitioner, they limit their argument against the constitutionality of the 2003 amendment to §440.34 to contending that the amendment violates Art. I, §21, Fla. Const., the "access to courts" provision. Here's my summary of their argument:
The legislature may not abolish a right without providing a reasonable alternative to recovery unless an overpowering public necessity can be shown. As recently as 1991, the Florida Supreme Court held that the benefits available to an injured worker under the Florida Workers' Compensation Law continued to provide a reasonable alternative to the right of the worker's right to recover from his employer in tort. See Martinez v. Scanlan, 582 So.2d 1167 (Fla. 1991).
Since that time, however, the legislature has sharply reduced the benefits available to an injured worker in the workers' compensation system. By way of comparison, the benefits awarded to Murray in this case amounted to $3,244.21, whereas a review of recent jury verdicts in tort claims involving injuries similar to those suffered by Murray have been as high as $2M.
Continue Reading...(Cont'd from Part I)
Here's my summary of the claimant's arguments before the Supreme Court:
(1) The limitation on attorney's fees is contained in subsection (1) of §440.34. However, it is subsection (3) of §440.34 which governs the award of fees to be paid to the claimant's attorney by the employer/carrier, and that subsection contains no percentage cap on the amount of fees which may be awarded. Therefore, subsection (1), with its percentage caps, applies only in instances involving a joint stipulation for a lump-sum settlement, or a stipulation by the claimant to pay his own attorney a fee. It does not apply where the employer/carrier is ordered to pay the claimant's attorney a fee under the circumstances enumerated in §440.34(3).
(2) As Judge Ervin noted in his concurring opinion in Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 542 (Fla. 1st DCA 2006), application of the percentage limitations to carrier-paid claimant's attorney's fees would produce results not intended by the legislature, such as mandating a percentage fee for attorneys who successfully defend a compensation award on appeal, or who obtain an order enforcing a previous compensation award, or who obtain an order modifying a previous compensation award, when a fee has already been paid for securing those benefits.
(3) In Makemson v. Martin Co., 491 So.2d 1109 (Fla. 1986), the Florida Supreme Court held that §925.036, Fla. Stat., which set maximum fee limitations for attorneys appointed by the court to represent indigent criminal defendants, was unconstitutional as applied and that the courts have the inherent power to allow fees in excess of the maximum allowed by the statute in "extraordinary and unusual" cases. [In Makemson, the court-appointed attorney had expended a total of 248.3 hours representing an indigent criminal defendant, yet his fees were capped by the statute at only $3,500.00, an effective hourly rate of $14.10]. The judges of compensation claims should have similar authority in workers' compensation cases.
Continue Reading...The claimant has filed her initial brief in the Florida Supreme Court in the case of Murray v. Mariners Health, the case where the Court has agreed to consider the constitutionality of the 2003 amendment to §440.34, Fla. Stat. You can read a copy of the brief here. Here's my summary:
Emma Murray was injured in an accident on 10/31/2003. The employer/carrier contested the compensability of the accident, but after a hearing on the merits, the JCC rejected that position and awarded her TTD benefits totaling $1,763.86, out-of-pocket medical expenses totaling $1,092.57, interest in the amount of 352.78, and penalties in the amount of $35.00.
Murray's attorney thereafter filed a verified petition for attorney's fees in which he alleged that he had expended 84.4 hours in securing those benefits. He alleged that a reasonable hourly rate for his services was $200.00 per hour. The attorney contended (1) that the 2003 amendment to §440.34 applies only to settlement agreements, (2) that a percentage fee based upon the value of the benefits secured by the attorney would be "manifestly unfair, and (3) that limiting the fee to the percentage amount would be an unconstitutional denial of equal protection, access to courts, and a violation of the separation of powers clauses of the state constitution.
Continue Reading...(Cont'd from Part III)
As I said earlier, it’s anyone’s guess how the Florida Supreme Court will ultimately rule on the merits of Murray, but if previous 4-3 decisions from the Court where Chief Justice Lewis and Justices Anstead, Pariente, and Quince were in the majority are any guide, I think proponents of the amendment have reason to worry.
I base that conclusion on the fact that the views of these same four justices have carried the day against the views of the other three in these cases (in reverse chronological order):
Continue Reading...(Cont'd from Part II)
SUPREME COURT REVIEW IN MURRAY AND BUITRAGO
In Murray, in addition to filing her notice to invoke the discretionary jurisdiction of the Supreme Court on 2/8/2007, she also filed with the Court a motion entitled “Motion to Determine Whether Jurisdictional Brief is Due and Motion for Extension of Time to Serve Jurisdictional Brief if Due.” (SC07-244). By order dated 4/17/2007, the court entered an order once again declining review on the basis of the certified question but ordering the parties to submit jurisdictional briefs “as to the validity basis only.”
So did the First DCA in Murray “expressly declare valid” the 2003 amendment to §440.34? The employer/carrier argued in their jurisdictional brief that it did not. Rather, they argued that the First DCA’s decision was in essence just a “citation PCA.” See Gandy v. State, 846 So.2d 1141, 1144 (Fla. 2003)(holding that “we do not have jurisdiction to review per curiam unelaborated denials of relief from the district courts of appeal that. . . merely cite to a case not pending on review in this Court, or to a statute or rule of procedure, and do not contain any discussion of the facts in the case such that it could be said that the district court ‘expressly addresse[d] a question of law within the four corners of the opinion itself’” (Emphasis added)). Though the First DCA’s Murray decision does note that the claimant’s constitutional challenges to the amendment were previously considered and rejected by the court in Lundy and Campbell, it contains no discussion of the facts of the case whatsoever.
Continue Reading...(Cont'd from Part I)
JURISDICTION OF THE FLORIDA SUPREME COURT
The Court’s mandatory appellate jurisdiction is actually quite limited. The court is required to hear an appeal only if it involves a death sentence, if it is a decision of a district court of appeal which declares invalid a state statute or state constitutional provision, or if it is a decision involving a bond validation or rates which public utilities may charge. See Art. V, §3(b)(1) and (2), Fla. Const.; Fla. R. App. P. 9.030(a)(1).
The Court’s entire remaining appellate jurisdiction is discretionary. Except for situations not relevant here, the Court’s discretionary jurisdiction is limited to reviewing decisions of a district court of appeal (“DCA”) that: (1) “expressly declare valid a state statute;” (2) “expressly and directly conflict” with a decision of another DCA or of the Supreme Court; or (3) pass upon a question certified by the DCA to be one “of great public importance.” See Art. V, §3(b)(3), Fla. Const., Fla. R. App. P. 9.030(a)(2).
The party seeking to invoke the Court’s discretionary jurisdiction under grounds (1) or (2) above are required to file jurisdictional briefs with the Court to explain not only why the Court has jurisdiction, but why the Court should exercise its discretion and hear the case. Jurisdictional briefs are not required, however, under scenario number (3) where the DCA has certified that its decision passes upon a question of great public importance. In fact, they aren’t even permitted. See Fla. R. App. P. 9.120(d).
Continue Reading...The Florida Supreme Court has now agreed to consider the constitutional validity of the 2003 amendment to §440.34, Fla. Stat., which took away the JCC's discretion to award claimant's attorney's fees in excess of a percentage of the "benefits secured" by the attorney. It’s anyone’s guess how the Court will ultimately decide the case of Murray v. Mariners Health, of course, but if other recent Supreme Court decisions and the proceedings in the case thus far are any indication, the Court’s 4-3 decision to accept review in the case might not bode well for proponents of the amendment. (Previous posts on this issue can be found here, here, and here). In the next few posts, I’ll try to explain why I think that might be so.
CHALLENGES TO THE 2003 AMENDMENT TO DATE
First, let’s look at the challenges to the amendment thus far and the reasons why the Supreme Court may have declined review up until now. To date, the First DCA has considered and rejected such challenges in seven different cases involving written opinions. They are (in chronological order): (1) Wood v. Florida Rock Industries; (2) Lundy v. Four Seasons Ocean Grand Palm Beach; (3) Campbell v. Aramark; (4) Buitrago v. Landry’s; (5) Murray; (6) La Petite Academy v. Duprey; and (7) Payne v. Wal-Mart.
Continue Reading...In what will surely be a closely watched case, the Florida Supreme Court on 10/30/2007 agreed to accept jurisdiction in Murray v. Mariners Health, a case which I wrote about here. As it had in several other cases, the First District Court of Appeal in Murray rejected a constitutional challenge to the 2003 amendment to §440.34, Fla. Stat. That amendment restricted the amount of attorney's fees which may be awarded to a successful claimant's attorney to a percentage of the value of the benefits secured by the attorney.
You can read the Supreme Court's 4-3 decision agreeing to accept jurisdiction here. As they have recently, the justices once again split along ideological lines. The majority (Chief Justice Lewis, along with Justices Anstead, Pariente, and Quince) which agreed to accept jurisdiction is the same majority which recently prevailed in the "impact rule" cases which I wrote about here.
The Petitioner's Initial Brief is due to be served on 11/26/2007. Oral argument is scheduled for 4/9/2008 at 9:00 a.m. in Tallahassee.
Here's yet another case where the First District Court of Appeal rejected a challenge to the constitutionality of the 2003 amendment to s.440.34. This amendment limits the amount of fees which can be awarded to a claimant's attorney to a percentage of the "benefits secured" as a result of the attorney's efforts. Pursuant to this amendment, the JCC awarded the claimant's attorney a fee of $100.00 for obtaining $500.00 worth of benefits, even though the parties stipulated that the attorney reasonably expended 10 hours of time in obtaining the benefits. The amendment therefore resulted in an effective rate of $10.00 per hour. You can read the JCC's decision here.
As I wrote about here and here, there are currently two cases still pending before the Florida Supreme Court which are awaiting a decision from the Court on whether it will accept jurisdiction. The Court has so far declined to address the issue in four other cases.
In 2001, the legislature amended s.440.20(11), Fla. Stat., to repeal the JCC's former duty to review a proposed lump-sum settlement of an injured worker's right to future benefits to ensure that it was in the best interests of the worker. See Ch. 2001-91, s.17, Laws of Fla. Under the revised statute, in cases where the injured worker is represented by counsel, the JCC has jurisdiction only to review the amount of attorney's fees paid by the claimant to his attorney for obtaining the settlement and to ensure that any child support arrearages owed by the worker are paid from the proceeds of the settlement.
But what happens if the JCC approves the amount of attorney's fees but does not approve of the amount of costs being charged to the worker by his attorney? Can the JCC refuse to approve both the attorney's fees and the costs? That's what the JCC did in this order.
But the First District Court of Appeal has now said no. In Eshlibi v. Consolidated Box Manufacturing, decided on 7/31/2001, the Court said that "a JCC lacks statutory authority to deny the attorney's fees based upon costs charged to the claimant" in lump-sum settlement cases.
On 7/13/2007, the Florida Supreme Court denied review in Duprey v. La Petite Academy, a case which involved the consitutionality of the 2003 amendment to the attorney's fees provision of the Florida Workers' Compensation Act, and which I wrote about here. That leaves only Murray v. Mariners Health (Case No. SC07-244) and Buitrago v. Landry's (Case No SC07-762) still pending before the Court on this question.
Perhaps no provision of the 2003 amendments to the Florida Workers' Compensation Act has stirred more debate than the provision limiting attorney's fees to claimant's attorneys. Florida workers' compensation law has long provided that successful claimant's attorneys are entitled to be paid a fee from the employer/carrier in certain circumstances. The starting point for determining the amount of that fee was a percentage of the "benefits secured" by the attorney as a result of his efforts.
But the statute allowed the judge of compensation claims to opt out of those statutory percentages in cases where the amount of the resulting fee would be "manifestly unfair." Generally, this occurred in cases where the amount of the "benefits secured" was relatively small but the amount of time devoted by the attorney in order to secure those benefits was relatively large. In these cases, the judge could award a fee based upon the number of hours reasonably devoted by the attorney in prosecuting the claim, multiplied by a reasonable hourly rate. The ability to deviate from the statutory percentages was necessary, the First District once reasoned, because otherwise in small cases the claimant would be as "helpless as a turtle on its back," i.e., unable to secure competent counsel to represent him. Davis v. Keeto, Inc., 463 So.2d 368, 371 (Fla. 1st DCA 1985).
Continue Reading...
David A. McCranie has been licensed to practice law in the State of Florida since 1982. He forrmerly served asMore...
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