R. P. HEWITT & ASSOCIATES, PETITIONER,
v.
THE HONORABLE CHARLES C. HURT, DEPUTY COMMISSIONER, STATE OF FLORIDA, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF WORKERS' COMPENSATION, DISTRICT "F", RESPONDENT
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R. P. Hewitt & Associates sought a writ of prohibition to prevent a deputy workers' compensation commissioner from further action in a pending claim. The court granted the petition, finding the deputy commissioner must recuse himself because he attempted to refute charges of partiality by commenting on the truth and falsity of allegations in a disqualification motion, thereby violating the rule requiring automatic disqualification when such refutation occurs.
A deputy commissioner must disqualify himself if a party complies with statutory and rule requirements and submits legally sufficient documents; no additional requirements may be imposed by 'court rule.' The deputy in this case must be disqualified because by commenting on the truth and falsity of the alleged facts, he attempted to refute charges of partiality and therefore satisfied the basis for mandatory disqualification under Bundy v. Rudd.
[1] A party seeking to disqualify a deputy commissioner must comply with the requirements imposed by rule and statute.
[2] A deputy commissioner cannot impose additional requirements beyond those established by rule and statute for disqualification.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If the party complies with those requirements and if the documents submitted by the party are legally sufficient, the deputy must disqualify himself. Additional requirements cannot be imposed by 'court rule'.”
Establishes that disqualification is mandatory upon statutory compliance and cannot be conditioned on additional local requirements
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Join FLexlaw to unlock all legal intelligencePetitioner R. P. Hewitt & Associates filed a verified motion to disqualify the deputy commissioner pursuant to Florida Rule of Civil Procedure 1.432 a…
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PER CURIAM.
Petitioner seeks issuance of a writ of prohibition to prevent respondent from taking further action in a workers compensation claim pending before him.
Pursuant to Florida Rule of Civil Procedure 1.432 and Section 38.10, Florida Statutes (1981), petitioner filed a verified motion to disqualify the deputy commissioner, supported by two affidavits and accompanied by a certificate of counsel. The motion was denied because the movant and affiants were not at the hearing on the motion, which violated a “court rule” established by the deputy.
A party seeking to disqualify a deputy commissioner must comply with the requirements imposed by rule and statute. See Miller & Barton Co. v. Lankford, IRC Order 2-2972 (1976). If the party complies with those requirements and if the documents submitted by the party are legally sufficient, the deputy must disqualify himself. Additional requirements cannot be imposed by “court rule”.
In the instant case, the deputy based the denial of the motion to disqualify solely on the failure of petitioner to comply with the “court rule”. However, in his response to the petition, the deputy did not limit his argument to the propriety of his “court rule” or to the legal sufficiency of the documents. Throughout his response he points out that the facts alleged in the motion and affidavit are not true and that the movant and affiants could not possibly have personal knowledge of the facts. Although the deputy made these statements in conjunction with stating that he had not passed on the truth or falsity of the alleged facts, by his comments he has “. .. attempted to refute the charges of partiality”, and therefore must be disqualified on that basis alone. Bundy v. Rudd, 366 So. 2d 440 (Fla.1978).
The petition for writ of prohibition is granted although we assume that formal issuance of the writ will be unnecessary. Respondent shall take no further action in the case styled Katrina Kirkland v. Florida United Presbyterian Home and R. P. Hewitt & Associates, Claim No. [ XXX-XX-XXXX ]. The Chief Commissioner shall assign the claim to another deputy commissioner. It is so ordered.
BOOTH, SHIVERS and JOANOS, JJ., concur.
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Sikes v. Seaboard Coast Line R.R. Co., 429 So. 2d 1216 (Fla. 1st DCA 1983)…ication procedure in a civil case, it is apparent that the lower court properly read Rule 1.432 in pari materia with Section 38.10, Florida Statutes., Accord Gieseke v. Grossman, 418 So. 2d 1055 (Fla. 4th DCA 1982); R.P. Hewitt & Associates v. Hunt, 411 So. 2d 266 (Fla. 1st DCA 1982); Hayslip v. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981); compare Jackson v. Korda, 402 So. 2d 1362 (Fla. 4th DCA 1981) (criminal case). In considering both the language in the rule and the statute, we think that it is inappropri…
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Lapinell Mobil & Fireman's Fund Am. Ins. Cos. v. The Honorable David L. Trask, 463 So. 2d 389 (Fla. 1st DCA 1985)…ibition is an appropriate vehicle to prevent judicial action when a judge or deputy commissioner has improperly denied a motion to disqualify. State ex rel Bank of America v. Rowe, 96 Fla. 277, 118 So. 6 (1928); and R.P. Hewitt & Associates v. Hurt, 411 So. 2d 266 (Fla. 1st DCA 1982). However, in the instant case, we agree with the deputy’s ruling that the facts alleged by the employer/carrier were legally insufficient to justify the granting of the motion.1 We would note that, in so ruling, the deputy did n…
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Milmir Constr. v. Judge J. Paul Jones, 626 So. 2d 985 (Fla. 1st DCA 1993)…y held that in considering a motion for disqualification of a judge of compensation claims we would look to section 38.10, Florida Statutes, for guidance. Dade County v. Turnbull, 572 So. 2d 540 (Fla. 1st DCA 1990); R.P. Hewitt & Associates v. Hurt, 411 So. 2d 266 (Fla. 1st DCA 1982). These decisions also discuss compliance with Florida Rule of Civil Procedure 1.432 but we note that this rule has been repealed and replaced with Florida Rule of Judicial Administration 2.160 effective January 1, 1993. See The F…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- THE Florida BAR v. Sanford Freed, 366 So. 2d 440 (Fla. 1978)