There has been
clarity recently in the attorney fee litigation process. The First District
Court of Appeal held that when an attorney fee issue remains pending in a case,
the petition for benefits that initiated that claim will likewise remain open. Longley
v. Miami Dade County School Board, 82 So.3d 1098 (Fla. 1st DCA
2012). When this decision came down, there was much discussion among the
employer/carriers and the attorneys that represent them. There was a similar
volume of discussion by claimant’s attorneys, albeit from a different
perspective. This is to be expected, the perspectives of these two diverse
groups is rarely coincident.
Intertwined in
this analysis was the proposal regarding compelling attorney fee motions, which
arose in the last rules cycle, and which resulted in Rule 60Q6.124(4)(“Upon
motion by any party, the judge may require the claimant to file a verified
motion for attorney’s fees and costs and adjudicate the verified motion for
attorney’s fees and costs.”). There is an old adage in the insurance industry,
“a good claim is a closed claim.” Frankly, I think there are many on both sides
of the table who feel that way, at some point, in most claims. This
thought process drove the effort to have some way to bring attorney fee issues
to the fore in the appropriate setting, thus the Rule.
Since this became
the Rule last fall, there have been many such Motion to Compel Verified Motion
filed (please note that the rules no longer reference “verified petitions” for
fees, but instead we have transitioned to the “verified motion,” see Rule
60Q6.124(3)(a)). I have seen some Motions to Compel granted, others denied. I
periodically hear from both sides that there seems little consistency with this
process.
I have even more
recently seen a few Motions to Dismiss for Failure to Prosecute, pursuant
to Fla. Stat. §440.25(4)(i)(“A judge of compensation claims may,
upon the motion of a party or the judge’s own motion, dismiss a petition for
lack of prosecution if a petition, response, motion, order, request for
hearing, or notice of deposition has not been filed during the previous 12
months unless good cause is shown”). The employer/carriers in these instances
are not seeking to force prosecution of the fee issue (whether entitlement or
amount) as under the Rule. Under the statute, they are seeking dismissal of the
fee issue, just as with any other failure to prosecute.
The constriction
of fees passed in 2009, which removed the “reasonable”
from Fla. Stat. §440.34, and eliminated much of the hourly fee
entitlement from Chapter 440, has increased the importance of determining the
"value of benefits obtained." Many great attorneys historically felt
that this finding was important under the prior versions
of Fla. Stat. §440.34, and did significant work to document and
value the benefits obtained.
However, the
current fee statute makes this factual work critical to the fee. Attorneys
struggle with the fact that a reasonable determination of this fact may not be
practical or even possible until many months have passed. During the passage of
time, claimed benefits are provided, and may lead to other benefits being
provided. This will be particularly true in compensability cases and many
medical benefit claims, where a significant volume of benefits may result over
time from one critical determination early in the litigation.
The Judge is
therefore presented with conflicting interests. The E/C wants a closed file,
the claimant's counsel finds it too early to viably determine the value of the
benefits. Thankfully, this is not alien to the judge. Conflicting interests are
what we do. There will be many cases in which one interest will outweigh other
interests, and a determination will be made. Obviously, most such decisions
result in one party finding the Judge’s decision brilliant and the other
finding it intellectual refuse.
It is recommended
that parties discuss these situations. The “good faith” requirements of Rule
60Q6.115 (“Except for motions to dismiss for lack of prosecution . . .”)
specifically do not apply to motions to dismiss for failure to prosecute. It is
therefore probable that the discussion in these instances will not occur before
the motion is filed. However, once the motion is filed there should be a good
faith discussion regarding the subject of the subject motion.
There may be
circumstances in which the facts would preclude the dismissal of the fee claim.
There may be others in which the balancing of considerations will result in
denial of the motion to dismiss, despite the existence of seemingly sound
factual grounds. In either instance, a withdrawal of the motion might be an
appropriate process to conserve judicial and attorney resources. In yet others,
the dismissal may be the appropriate outcome.
