FLORIDA POWER & LIGHT COMPANY, APPELLANT,
v.
DONA L. CALLAHAN, APPELLEE
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Florida Power & Light Company, a self-insured employer, appealed a deputy commissioner's order that denied its motion to dismiss a workers' compensation claim for attorney's fees based on lack of prosecution. The court reversed, holding that the claim for attorney's fees was subject to dismissal under the two-year inactivity rule.
The court held that it was error to deny the motion to dismiss the claim for attorney's fees because no action had been taken within the two-year period required by Rule 11(b), and therefore the claim for attorney's fees was subject to dismissal for lack of prosecution.
[1] A workers' compensation claim is subject to dismissal for lack of prosecution if no action has been taken for a period of two years.
[2] A claim for attorney's fees in a workers' compensation case is subject to dismissal for lack of prosecution if no action has been taken on that claim within the statutory…
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Join FLexlaw to unlock all legal intelligence“in which it affirmatively appears that no action has been taken by request for hearing, filing of pleadings, order of Deputy Commissioner, payment of compensation, provision of medical care, or otherwise for a period of two years, [the claim] is subject to dismissal for lack of prosecution”
States the rule governing dismissal for lack of prosecution in workers' compensation cases
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Join FLexlaw to unlock all legal intelligenceThe claimant filed a workers' compensation claim on October 2, 1978, for an injury occurring September 18, 1978, seeking temporary total disability, t…
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JOANOS, Judge.
In this workers’ compensation cause the self-insured employer appeals that portion of the deputy commissioner’s order which denied their motion to dismiss for failure to prosecute with respect to a pending claim for attorney’s fees. ’ We reverse.
The initial claim in this case was filed on October 2, 1978, for an injury which occurred on September 18, 1978. At that time, the claimant sought temporary total disability benefits, temporary partial disability benefits, permanent partial disability benefits, future medical care, and attorney’s fees. The claimant received temporary partial disability benefits and medical care intermittently from the date of the accident through April 1981.
The last activity on this claim occurred on April 16, 1981, when the deputy granted claimant’s request for further evaluation and continuing care, denied claimant’s request for treatment by a different orthopedic surgeon, and reserved the matter of attorney’s fees and costs.
On February 8, 1984, the employer filed a motion to dismiss for lack of prosecution, pursuant to Florida Workers’ Compensation Rule of Procedure 11(b). Rule 11(b) provides that in those instances in a workers’ compensation claim “in which it affirmatively appears that no action has been taken by request for hearing, filing of pleadings, order of Deputy Commissioner, payment of compensation, provision of medical care, or otherwise for a period of two years, [the claim] is subject to dismissal for lack of prosecution.” On May 1, 1984, a hearing was held on the employer’s motion to dismiss. Claimant’s attorney agreed there had been no activity on the claim since April 27, 1981, but requested that the deputy reserve the matter of costs and attorney’s fees. In an order dated May 16, 1984, the deputy commissioner granted the motion to dismiss with respect to the underlying workers’ compensation claim, but left open the issue of an attorney’s fee.
It was error to deny the motion to dismiss the claim for attorney’s fees because no action had been taken within the two year period provided by Florida Workers’ Compensation Rule of Procedure 11(b). See: Jerry Chapman, Inc. v. Ivey, 448 So. 2d 11 (Fla. 1st DCA 1984). Accordingly, we reverse the deputy commissioner’s order denying the motion to dismiss the pending claim for attorney’s fees.
THOMPSON and ZEHMER, JJ., concur.
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Zaldivar v. Okeelanta Corp. & Alexis, 877 So. 2d 927 (Fla. 1st DCA 2004)…Appellees rely upon two cases involving workers’ compensation attorney’s fees, but not charging liens, where this court determined that the claim for fees may be subject to dismissal for lack of prosecution. See Fla. Power & Light Co. v. Callahan, 470 So. 2d 819 (Fla. 1st DCA 1985); Jerry Chapman, Inc. v. Ivey, 448 So. 2d 11 (Fla. 1st DCA 1984). The court applied the predecessors to Rule 4.075 in those cases because the attorney’s fees claims in those cases were tied to the claimant’s cause of action in wor…
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Vassallo v. Goldwire, 18 So. 3d 670 (Fla. 1st DCA 2009)…Appellant did not show good cause for his failure to do so. The JCC also rejected Appellant’s argument that Appellee had the burden to show prejudice to establish a defense of laches. Rather, the JCC relied on Florida Power & Light Co. v. Callahan, 470 So. 2d 819 (Fla. 1st DCA 1985), and Regal Wood Products v. Mendez, 432 So. 2d 141 (Fla. 1st DCA 1983), as authority for dismissing the fee petition. Based on the foregoing, the JCC dismissed Appellant’s fee petition with prejudice. First, the JCC erred in rel…
Authorities Cited
- Jerry Chapman, Inc. v. Ivey, 448 So. 2d 11 (Fla. 1st DCA 1984)