BRICE BUILDING CO. AND U.S. FIDELITY & GUARANTY CO., APPELLANTS,
v.
GARY S. BRACKEN, APPELLEE
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The Florida District Court of Appeal reversed a workers' compensation order awarding attorney's fees based on a bad faith finding, holding that the carrier's reasonable dispute over the claimant's average weekly wage and timely payment did not constitute bad faith under § 440.34(2)(b).
The court held that the deputy abused its discretion in finding bad faith. Bad faith requires fraud, malice, oppression, or willful, wanton, or reckless disregard of the claimant's rights, and is not warranted merely because the carrier disputes the deputy's position when a reasonable dispute exists. The carrier's conduct—pursuing active investigation, maintaining a reasonable position on wage calculation, and paying within three days of finality—did not constitute bad faith.
[1] A deputy commissioner's finding of bad faith for awarding attorney's fees under § 440.34(2)(b), Florida Statutes, is an abuse of discretion when the employer/carrier acti…
[2] A delay in payment, even while an appeal is contemplated, does not constitute bad faith if the delay is not of such magnitude as to indicate fraud, malice, oppression, or…
Previewing 2 of 4 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“a deputy commissioner has broad discretion in determining bad faith, and such finding may be predicated on the "delay or denial of payment, without a showing of active effort and initiative on the part of the carrier to fairly and expeditiously determine its obligation"”
Establishes the standard for finding bad faith in workers' compensation cases
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe carrier investigated the claimant's wage calculation and determined that the claimant's average weekly wage was properly calculated based on the a…
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WENTWORTH, Judge.
Appellants seek review of a workers’ compensation order whereby appellee was awarded payment of attorney’s fees pursuant to § 440.34(2)(b), Florida Statutes. We conclude that the deputy erred in finding “bad faith” as a predicate for the award, and we therefore reverse the order appealed.
As Florida Erection Services Inc. v. McDonald, 395 So. 2d 203 (Fla. 1st DCA 1981), recognizes, a deputy commissioner has broad discretion in determining bad faith, and such finding may be predicated on the “delay or denial of payment, without a showing of active effort and initiative on the part of the carrier to fairly and expeditiously determine its obligation .... ” Nor does this obligation cease when the employer/carrier contemplates an appeal. See Holiday Care Center v. Scriven, 418 So. 2d 322 (Fla. 1st DCA 1982). However, where a reasonable dispute exists, a bad faith finding is not warranted merely because the deputy disagrees with the employer/carrier’s position. See Harper Plumbing & Heating v. Boyd, 418 So. 2d 396 (Fla. 1st DCA 1982). In the present case the carrier did pursue active investigation to determine its obligation, and it does not appear that the carrier acted unreasonably in maintaining the position that, based on the information it had secured, claimant’s average weekly wage was properly determined in accordance with the actual wages indicated in his wage statement. A subsequent delay in payment, while appellants were contemplating appeal, until three days after the order became final was not of such magnitude as to constitute bad faith in the circumstances of the present case. The totality of the circumstances involved does not indicate “fraud, malice, oppression or willful, wanton or reckless disregard of the rights of the claimant,” as § 440.34(2)(b) defines “bad faith.” In the present case the deputy’s finding of bad faith was therefore an abuse of discretion.
The order appealed is reversed.
BOOTH and THOMPSON, JJ., concur.
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Sumter Co. BD. OF Cnty. Comm'rs & Rockwood Ins. Co. v. Groover, 579 So. 2d 796 (Fla. 1st DCA 1991)…n determining bad faith, and that such finding may be based upon delay or denial of payment, in the absence of a showing of active effort and initiative by the carrier to fairly and expeditiously determine its obligation. Brice Bldg. Co. v. Bracken, 436 So. 2d 1046, 1047 (Fla. 1st DCA 1983). In the case at bar, the E/C took the position that the employee was not entitled to have certain fringe benefits included in his AWW, because he had voluntarily limited his income by leaving his employment. The majority…
Authorities Cited
- Fla. Erection Servs., Inc. v. Raymer McDONALD, 395 So. 2d 203 (Fla. 1st DCA 1981)
- Holiday Care Ctr. v. Scriven, 418 So. 2d 322 (Fla. 1st DCA 1982)
- Harper Plumbing & Heating & Hewitt v. Boyd, 418 So. 2d 396 (Fla. 1st DCA 1982)