CITY OF LEESBURG AND U. S. FIDELITY & GUARANTY COMPANY, APPELLANTS,
v.
OSCAR L. PADGETT, APPELLEE
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The Florida First District Court of Appeal reversed a worker's compensation attorney's fee award that reserved jurisdiction for annual fee awards tied to future attendant care benefits. The court held that attorney's fees in worker's compensation cases must be determined as a lump sum based on services rendered through the date of hearing, not on a contingent or annualized basis.
Attorney's fees in worker's compensation cases must be awarded as a lump sum based on services rendered up to the date of hearing. Reservation of jurisdiction for annual fee awards based on future benefits is improper. Although the statutory sliding scale provides guidelines, fees cannot be based solely on a contingent percentage without substantial reduction based on the circumstances, including time expended and issues involved.
[1] An attorney's fee award in a workers' compensation case should be determined as of the date of the hearing and awarded in a lump sum, rather than based on future compensa…
[2] Reserving jurisdiction to award attorney's fees on an annual basis for ongoing attendant care in a workers' compensation case is improper.
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Join FLexlaw to unlock all legal intelligence“The fee represents compensation for services rendered up to the date of the hearing. There is no reason, either in logic or in law, for not determining the fee to which the attorney is entitled as of that date and awarding it in a lump sum.”
Establishes the fundamental principle that attorney's fees must be a lump sum award based on services rendered through the hearing date, not contingent on future benefits.
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Join FLexlaw to unlock all legal intelligenceClaimant's attorney successfully secured attendant care for the worker's compensation claimant. The deputy awarded an initial attorney's fee of $5,000…
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PER CURIAM.
Employer/carrier appeal a worker’s compensation order which awarded attorney’s fees to claimant’s attorney. We reverse and remand.
Claimant’s attorney was successful in securing attendant care for claimant. The deputy’s order awarded an attorney’s fee of $5,000 based upon benefits received to date and reserved jurisdiction for the purpose of awarding additional attorney’s fees on not more than a yearly basis for as long as the claimant continued to need attendant care.
Employer/carrier argue that the reservation of jurisdiction for the purpose of the award of an annual attorney’s fee is improper. We agree. In Matera v. Gautier, 133 So. 2d 732 (Fla.1961), the Supreme Court reversed an attorney’s fee which was based upon a percentage of annual disability benefits paid to the claimant. The court stated:
The fee represents compensation for services rendered up to the date of the hearing. There is no reason, either in logic or in law, for not determining the fee to which the attorney is entitled as of that date and awarding it in a lump sum.... To award an indeterminable fee on the basis of future compensation is to place too great an emphasis on the size of the award and insufficient emphasis on the other elements which go into the determination of the attorney’s fee to be awarded.
See also, Department of Transportation v. Cato, IRC Order 2-3138 (May 3, 1977), cert. denied, 351 So. 2d 405 (Fla.1977), where the Commission cautioned against annualization of fees. It has been held that the contingent percentage basis for determining fees is inappropriate due to the nature of worker’s compensation law. Lee Engineering and Construction Co. v. Fellows, 209 So. 2d 454 (Fla.1968). Although Section 440.34, Florida Statutes (1977) sets forth a percentage fee schedule based on the amount of benefits secured, an award based solely on a contingent percentage basis remains improper since the statute, applicable here because effective before the time of the deputy’s award,. Okaloosa County Gas District v. Mandel, 394 So. 2d 453 (Fla. 1st DCA 1981), mandates consideration by the deputy of the Lee Engineering factors in determining a reasonable fee.
Accordingly, we reverse the award of attorney’s fees and remand the cause for reconsideration and for the determination of an appropriate lump sum fee. We caution, however, that an attorney’s fee based upon the statutory sliding scale guidelines without a substantial reduction based upon the circumstances of this case, particularly the time expended in the case and the issue involved, would be considered excessive as an abuse of discretion.
REVERSED and REMANDED.
McCORD, ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.
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What AN Idea, Inc. v. Sitko, 505 So. 2d 497 (Fla. 1st DCA 1987)…n v. Meredith, 482 So. 2d 515 (Fla. 1st DCA 1986). The claimant cross-appeals the deputy commissioner’s order allowing payment of the attorney’s fees in installments, citing Matera v. Gautier, 133 So. 2d 732 (Fla.1961), City of Leesburg v. Padgett, 397 So. 2d 732 (Fla. 1st DCA 1981), and M. Serra Corporation v. Garcia, 426 So. 2d 1118 (Fla. 1st DCA 1983). While we agree with cross-appellees that these cases are distinguishable in that in none of them did the deputy commissioner determine and order payment of…
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Gilma Samper v. W.B. Johnson Props., 481 So. 2d 88 (Fla. 1st DCA 1986)…y to take into account the continuing dispersal of benefits to a claimant. That approach overly emphasizes the contingency aspect of a fee award. See Santa Rosa Marble, Inc. v. Ubieta, 436 So. 2d 311 (Fla. 1st DCA 1983); City of Leesburg v. Padgett, 397 So. 2d 732 (Fla. 1st DCA 1981). In Santa Rosa Marble, the deputy commissioner’s order awarded a fee for services rendered up to the date of the hearing and reserved jurisdiction for “purposes of determining a reasonable attorney’s fee owing to claimant’s attor…
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M. Serra Corp. & The Travelers Ins. Co. v. Garcia, 426 So. 2d 1118 (Fla. 1st DCA 1983)…dollar range,3 we cannot [*1120] approve an award of fees — particularly an award of this magnitude — where it does not appear that full consideration was given to all of the factors called for by the statute. See, also, City of Leesburg v. Padgett, 397 So. 2d 732, 733 (Fla. 1st DCA 1981), in which the court reviewed an attorney’s fees award for obtaining attendant care benefits,4 stating (Id. at 733): Accordingly, we reverse the award of attorney’s fees and remand the cause for reconsideration and for the d…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gray v. Attorney Gen., State of Fla. and/or State Attorney, Cir. Court, Volusia Cnty., Fla., 209 So. 2d 454 (Fla. 1968)
- Burns v. City OF Fort Lauderdale, 133 So. 2d 732 (Fla. 1961)
- Okaloosa Cnty. GAS Dist. v. Mandel, 394 So. 2d 453 (Fla. 1st DCA 1981)