ANOTHER ASSAULT ON “EXCLUSIVE LIABILITY” (§440.11): EXCLUSIVE LIABILITY WINS THIS ROUND!

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An MKRS Law Landmark Alert!

That Fee Case You Didn’t Even Know About! 

ANOTHER ASSAULT ON “EXCLUSIVE LIABILITY” (§440.11):  EXCLUSIVE LIABILITY WINS THIS ROUND!

Phillip S. Lane v. Workforce Business Services, Inc. f/k/a Employee Leasing Solutions, Superior Coating, Inc., and Zurich Insurance Company 1D14-0959

WHAT HAS HAPPENED:

The First District Court of Appeal issued an opinion today which rejects a “test case” prosecuted by members of the claimant’s bar and Florida Academy of Trial Lawyers designed to, in essence, get around attorneys’ fee limitations of Chapter 440.34 by ‘importing’ fee sanctions from civil litigation found in chapter 57.105 into the workers compensation setting.

ANALYSIS:

MKRS Law (Miller, Kagan, Rodriguez & Silver, P.L.) was enlisted to defend at the appellate stage after the case was successfully defended by Mark Ingram at the trial level — and briefs were filed —  however, the Court granted oral argument, something done in roughly only some 10% of appeals, signaling interest on the Court’s part, given that it had in the past referenced section 57.104 (as pertains to legal assistant fees) in workers compensation matters, and so it wanted to know: why not the companion measure, §57.105,  regarding essentially punitive attorney’s fees for frivolous claims and defenses.

In Oral Argument on October 14, MKRS argued successfully that the ‘relief’ sought by Claimant in order to enhance a fee in this case — would destabilize the workers compensation system by imposing punitive fees not only on E/C and their attorneys (50-50 split, or 100% E/C paid fee if E/C directed the attorney to act), but it would also allow E/C to go after the Claimant and claimant’s attorney for the same fees.

Moreover, the measure would not only be applicable at the ‘end’ of the proceedings but also to any petitions/pleadings/defenses or positions taken along the way.

Also, whether the Florida Supreme Court rejects Claimant Castellano’s constitutionality attack or reverses and imposes a “reasonable fee” standard back into the law – – these chapter 57.105 fees would still have been applicable — if the 1st DCA allowed Claimant Lane to succeed here.

“Destabilization” is not an exaggeration of what would follow claimant’s success in this case.

FINAL COMMENT:

This decision is not yet final: Claimant has 15 days within which to file for rehearing.  It does not seem to qualify for Supreme Court review on its face, but that might change subject to possible rehearing.

The court also disposed of a video deposition cost issue not independently significant in the context of this MKRS Landmark Alert.

For now, this is the law, and the ‘bullet’ (more like mortar shell!) has been dodged!

Parenthetically, MKRS has defended several”test cases” in recent months which have not resulted in opinions, including;

  • Keith Elms v. Castle Constructions, Inc., October 10, 2014, 1D14-2275, rejecting an effort by similar members of the claimant’s bar to establish entitlement to fees 30 days after an ‘informal’ PFB is filed, i.e., one sent only to E/C and not simultaneously filed with the division;
  • On behalf of our client NASCAR, MKRS successfully defended attorney Zientz’ efforts to strike the 104 week limitation on temporary ‘psychiatric’ claim benefits, a statute which is the mirror image of the temporary benefits statute involved in the Westfall challenge.  Davis v. Nascar, 139 So. 3d 303 (Fla. 1st DCA 2014)May 29, 2014, May 29, 2014,

Three bullets dodged – all consistent with MKRS’ mission now in its 56th year — of protecting the rights of the Florida employer and worker’s compensation carrier.

MKRS has today installed another brick in the wall of that defense.

Visit here to access the full opinion, as well as our coverage featured on WorkersCompensation.com.

MKRS will continue to keep its esteemed industry and claims clients abreast of developments, while continuing to defend their interests, just as it has been doing since 1958. 

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