ORANGE STATE MARINE AND RELIANCE INSURANCE COMPANY, APPELLANTS,
v.
WALTER SNACK, APPELLEE
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In a workers' compensation case, Orange State Marine and its carrier Reliance Insurance appealed an award of $400 in attorney's fees to the employee's counsel for attending depositions. The court affirmed, holding that Section 440.30 of the Florida Statutes clearly entitled the attorney to reasonable fees for deposition attendance when the claim had not been controverted and 21 days had not passed without payment.
The court held that the attorney's fees were properly awarded under the clear and unambiguous language of Section 440.30, and that the attorney's right to fees vests upon attendance at a qualifying deposition, so the court retained jurisdiction to award fees even after the claim was withdrawn.
[1] An employer or carrier taking a deposition must pay the claimant's attorney a reasonable fee for attending the deposition if the claim has not been controverted or if 21…
[2] A judge of industrial claims retains jurisdiction to award attorney's fees for attendance at a deposition under Section 440.30, Florida Statutes, even after the claimant…
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Join FLexlaw to unlock all legal intelligence“If the claim has not been controverted or if 21 days have not passed without payment, then the carrier or employer taking the deposition shall pay the claimant's attorney a reasonable attorney's fee for attending said deposition.”
Statutory language of Section 440.30 that clearly mandates the award of attorney's fees under the facts of this case
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWalter Snack filed a workers' compensation claim and application for hearing. The employer-carrier then deposed him twice before the claim was controv…
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MILLS, Chief Judge.
Orange State Marine, the employer, and Reliance Insurance Company, the carrier, appeal from an award of attorney’s fees by the Judge of Industrial Claims in a workers’ compensation case. We affirm.
After Walter Snack, the employee, filed a claim and an application for a hearing, the employer-carrier deposed him. Subsequently, a second application for hearing was filed and a second deposition was taken by the employer-carrier. At the time the depositions were taken, the claim had not been controverted nor had 21 days passed without payment. Thereafter, claim for compensation was withdrawn and three days later Snack’s attorney petitioned the Judge to establish a reasonable attorney’s fee for his attendance at the depositions, pursuant to Section 440.30, Florida Statutes (1978). A fee of $400 was awarded.
The employer-carrier urges that the factors considered in the order imply that the Judge awarded the fees pursuant to Section 440.34, Florida Statutes (1978), and that if the award was made pursuant to Section 440.30, the Judge erred in interpreting and applying the statute. It also urges that because the claim for compensation was voluntarily withdrawn before the petition for attorney’s fees was filed, the Judge lost jurisdiction to adjudicate and award attorney’s fees.
The petition for attorney’s fees expressly relied on Section 440.30 as the basis for the fees and there is nothing in the order indicating that the award was made on any other basis. Section 440.30 provides in pertinent part:
“If the claim has not been controverted or if 21 days have not passed without payment, then the carrier or employer taking the deposition shall pay the claimant’s attorney a reasonable attorney’s fee for attending said deposition.”
The employer-carrier concedes that under the facts of this case the attorney’s fee is justified if the strict language of the statute is applied. The statute is clear and unambiguous and it was properly applied by the Judge.
As for the jurisdictional challenge, the attorney’s right to a fee vests upon his attendance at a deposition which comes within the provisions of Section 440.30 and the Judge is not divested of jurisdiction to award the fee by the withdrawal of the claim.
The employer-carrier also challenges the amount of the fee. We have reviewed the record and the order and find no error. AFFIRMED.
ERVIN and SHIVERS, JJ., concur.
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Alphonso Jones v. K & L Contractors & Sec. Ins. Co. of Hartford, 392 So. 2d 375 (Fla. 1st DCA 1981)…ons to award appellant attorney’s fees under Section 440.30, Fla.Stat. (1979), for his attorney’s attendance at the four depositions taken by the employer/carrier without the filing of a workers’ compensation claim. See Orange State Marine v. Snack, 382 So. 2d 1367 (Fla. 1 DCA 1980). Appellant has also filed a motion asking this Court to tax as costs on this appeal the $50 filing fee paid by him and award a reasonable attorney’s fee to his attorney for representation before this Court. While Chapter 440, Fla.…
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Shannon v. Cheney Bros. Inc., 98 So. 3d 1228 (Fla. 1st DCA 2012)…he terms of section 440.30. Significantly, this court has previously held that an attorney’s right to a fee under section 440.30 “vests upon his attendance at a deposition” that is taken in the absence of a “claim.” See Orange State Marine v. Snack, 382 So. 2d 1367, 1368 (Fla. 1st DCA 1980) (“As for the jurisdictional challenge, the attorney’s right to a fee vests upon his attendance at a deposition which comes within the provisions of section 440.30 and the Judge is not divested of jurisdiction to award the f…
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Vazquez v. Romero, 179 So. 3d 402 (Fla. 1st DCA 2015)…658 So. 2d 670 (Fla. 1st DCA 1995) (permitting JCC to compel production of machine that injured claimant from employer even in absence of pending claim where E/C had accepted compensability and was providing benefits); Orange State Marine v. Snack, 382 So. 2d 1367 (Fla. 1st DCA 1980) (permitting JCC to award attorney’s fees for appearance at two depositions after worker filed claim; subsequent dismissal of claim did not divest JCC .of jurisdiction to award fee already earned by attendance at depositions). Se…