LUIS ACEVEDO (DECEASED), EMPLOYEE, AND GLADYS AND WILTREDO ACEVEDO, APPELLANTS,
v.
AMPCO PRODUCTS COMPANY AND FIREMAN'S FUND AMERICAN INSURANCE COMPANIES, APPELLEES
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In this workers' compensation case, the appellate court reversed a deputy commissioner's finding of no bad faith by the insurance carrier in handling a claim for death benefits, finding that the deputy lacked the benefit of the controlling McDonald decision at the time of the order and that certain findings in the order contradicted the no-bad-faith conclusion.
The court reversed the deputy commissioner's finding of no bad faith and remanded for reconsideration in light of the McDonald decision, which had been released after the original order. The deputy's findings regarding the carrier's knowledge of the penalties due and the absence of any legal excuse for the delayed payment, combined with the economic loss suffered by the widow, warranted reconsideration of the bad-faith issue.
[1] A deputy commissioner's findings regarding bad faith in a workers' compensation claim will not be disturbed on appeal absent a clear abuse of discretion or departure from…
[2] A case may be remanded for reconsideration when a prior ruling was made without the benefit of controlling appellate precedent.
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Join FLexlaw to unlock all legal intelligence“a deputy's findings with regard to bad faith will not be disturbed absent a clear abuse of discretion or departure from the essential requirements of the law”
Establishes the standard of review for bad-faith findings in workers' compensation cases under McDonald
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Join FLexlaw to unlock all legal intelligenceLuis Acevedo, an employee, died from a work-related injury on March 3, 1980. The carrier had notice and knowledge of the injury on that date but did n…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
In this worker’s compensation case the claimants appeal a deputy commissioner’s order finding that the carrier did not act in bad faith in handling the claim under Section 440.34(2)(b), Florida Statutes (1979). As a result the claimants were responsible for their own attorney’s fee.
Under this court’s decision in Florida Erection Services Inc. v. McDonald, 395 So. 2d 203 (Fla. 1st DCA 1981), a deputy’s findings with regard to bad faith will not be disturbed absent a clear abuse of discretion or departure from the essential requirements of the law. In this case, however, the order appealed contains express findings which lead us to believe that the deputy might have come to a different conclusion regarding bad faith in handling the claim given the benefit of McDonald, which was released after the order in this case was rendered. Specifically the deputy found as follows:
that compensation benefits of $130.83 per week were due and owing to the dependent widow fifteen days after the carrier had notice and knowledge of the injury on March 3, 1980; and that by the clear, precise and unambiguous language of the statute penalties were due and owing to the dependent widow at the same time as, but in addition to, increased compensation benefits of $9.69 per week paid to the claimant on July 8, 1980. I find that the carrier knew such penalties were due and owing and offered no legal excuse or justification for failure to pay statutory penalties at the same time as, and in addition to, the late payment of compensation benefits.
I find that compensation benefits due and owing the dependent widow were not paid until July 8,1980, approximately two and a half months after her claim for determination of her proper compensation rate was filed with the Division in Tallahassee, Florida, on April 23, 1980, causing her to suffer the economic loss of revenue due and owing to her for a period of four months.... (e.s.)
Because the deputy did not have the benefit of this court’s decision in McDonald when the order was entered and because of certain findings in the order which seem to contradict the finding that there was no bad faith in handling the claim, we reverse and remand for reconsideration in light of McDonald.
Because of this unique situation and the absence of any statutory authority for an award of appellate attorney’s fees except potentially Section 440.34(2)(b) together with Section 59.46, Florida Statutes, see Ship Shape v. Taylor, 397 So. 2d 1199 (Fla. 1st DCA 1981), we withhold acting on the motion for an appellate fee pending the deputy’s ruling after reconsideration of the matter. Should the deputy rule in the claimant’s favor, claimant’s attorney may petition this court to act on the motion.
Reversed and remanded.
ROBERT P. SMITH, Jr., and MILLS and SHIVERS, JJ., concur.
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The Exceptional Child's. Home & Nursery, Inc. v. Fortuna, 414 So. 2d 1130 (Fla. 1st DCA 1982)…light of his judgment, experience and knowledge. Ordinarily, his determination with respect to bad faith will not be disturbed absent a clear abuse of discretion or departure from the essential requirements of law. Acevedo v. Ampco Products Company, 407 So. 2d 376 (Fla. 1st DCA 1981). Our reversal in this case does not represent a retreat in any respect from the principles formulated in prior decisions. We caution also that our somewhat detailed recitation of the facts, particularly of dates and times, is not…
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Celtics Mobile Home Mfg. & CNA Ins. Co. v. Butler, 460 So. 2d 486 (Fla. 1st DCA 1984)…f any bad faith in relation to the claim adjudicated by the DC. A finding to the contrary constitutes a departure from the essential requirements of the law and a clear abuse of the discretion vested in the DC. See Acevedo v. Ampco Products Company, 407 So. 2d 376 (Fla. 1st DCA 1981). REVERSED. JOANOS and NIMMONS, JJ„ concur. . Following this order, the recommended surgery was performed and claimant was released on June 27, 1983, with a 10% permanent impairment of his right lower extremity.…
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Marglad Motel & Old Republic Ins. Co. v. Thomason, 414 So. 2d 567 (Fla. 1st DCA 1982)…ttorney’s fee. We affirm the compensation order and conditionally grant the award of appellate attorney’s fee. The fee will be awarded depending upon the deputy commissioner’s finding of entitlement to a fee below. Acevedo v. Ampco Products Company, 407 So. 2d 376 (Fla. 1st DCA 1981). ROBERT P. SMITH, Jr., C. J., and McCORD and BOOTH, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Erection Servs., Inc. v. Raymer McDONALD, 395 So. 2d 203 (Fla. 1st DCA 1981)
- Walker v. State, 397 So. 2d 1199 (Fla. 2d DCA 1981)