W.A. DOSS & SONS, INC. AND IOWA NATIONAL MUTUAL INSURANCE COMPANY, APPELLANTS,
v.
SHIRLEY ANN BARBATO, APPELLEE
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This workers' compensation case addresses whether attorneys who testify as expert witnesses on the issue of attorney's fees are entitled to expert witness fees. The court reversed both the attorney's fee award (for lack of proper statutory analysis) and the expert witness fee award (holding that Florida law does not authorize such fees in workers' compensation cases), while certifying a question of great public importance to the Florida Supreme Court.
The court reversed the attorney's fee award because the deputy failed to expressly consider the statutory factors required under Section 440.34(l)(a)-(h) and remanded for reconsideration. The court also reversed the expert witness fee award, holding that attorneys testifying on attorney's fees in workers' compensation cases are not entitled to expert witness fees under Section 440.31, Florida Statutes.
[1] An award of attorney's fees in a workers' compensation case must expressly consider the statutory guidelines and factors set forth in Section 440.34(1)(a)-(h), Florida St…
[2] Attorneys testifying on the issue of attorney's fees in workers' compensation cases are not entitled to expert witness fees under Section 440.31, Florida Statutes.
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“We reverse the award of the attorney's fee because the deputy, in his order, failed to expressly consider the guidelines and factors set forth in Section 440.-34(l)(a)-(h), Florida Statutes (1983) and Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968).”
Establishes the standard that Deputy Commissioners must expressly address statutory factors when awarding attorney's fees 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 Deputy Commissioner ordered the employer/carrier (W.A. Doss & Sons and Iowa National Mutual Insurance Company) to pay attorney's fees of $1,950 to…
The full statement of facts, procedural history, and disposition for this case are member content.
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NIMMONS, Judge.
The employer and carrier appeal from an order of the Deputy Commissioner requiring the employer/carrier to pay an attorney’s fee to claimant in the amount of $1,950 and to pay expert witness fees for the two attorneys who testified on the issue of attorney’s fees. We reverse both awards.
We reverse the award of the attorney’s fee because the deputy, in his order, failed to expressly consider the guidelines and factors set forth in Section 440.-34(l)(a)-(h), Florida Statutes (1983) and Lee Engineering & Construction Co. v. Fellows, 209 So. 2d 454 (Fla.1968). We therefore reverse as to the amount of the fee awarded and remand for reconsideration in light of the factors required under the above authorities.
We also reverse the deputy’s award of expert witness fees to the two attorneys who testified on behalf of the claimant’s attorney. The Florida Supreme Court has clearly established that attorneys who testify on the issue of attorney’s fees in worker’s compensation cases are not entitled to expert witness fees under Section 440.31, Florida Statutes (1983).1 Robert & Co. Associates v. Zabawczuk, 200 So. 2d 802 (Fla.1967).
The appellee has asserted that the Florida Supreme Court’s recent ruling in Travieso v. Travieso, 474 So. 2d 1184 (Fla.1985), effectively overruled its decision in Zabaw-czuk, supra. While the court held in Tra-vieso that an attorney who testifies as an expert on attorney’s fees shall be allowed an expert witness fee under Section 92.231, Florida Statutes (1983)2, the majority distinguished its prior decision in Zabawczuk as applying strictly to worker’s compensation cases. We thus find Zabawczuk controlling in this case and reverse the deputy’s award of expert witness fees.
We certify the following question of great public importance:
WHETHER SECTION 440.31, FLORIDA STATUTES (1983), AUTHORIZES THE AWARD OF EXPERT WITNESS FEES TO ATTORNEYS WHO TESTIFY ON THE ISSUE OF ATTORNEY’S FEES IN WORKER’S COMPENSATION CASES?
REVERSED AND REMANDED.
ERVIN and SMITH, JJ., concur. . Section 440.31, Florida Statutes (1983) provides as follows:
440.31 Witness fees. — Each witness who appears in obedience to a subpoena shall be entitled to the same fees as witnesses in a civil action in the circuit court; however, any expert witness, as defined in Rule 1.390(a) of the Rules of Civil Procedure, who shall have testified in any proceeding under this chapter shall be allowed a witness fee, including the cost of any exhibits used by such witness, in such reasonable amount as the deputy commissioner may determine, not in excess of the rate prevailing in the locality for witness fees for such expert witnesses in workers’ compensation proceedings, notwithstanding the limitation provided in s. 92.231.
. Section 92.231, Florida Statute (1983) provides as follows:
92.231 Expert witnesses; fee.—
(1) The term “expert witness” as used herein shall apply to any witness who offers himself in the trial of any civil action as an expert witness or who is subpoenaed to testify in such capacity before a state attorney in the investigation of a criminal matter, or before a grand jury, and who is permitted by the court to qualify and testify as such, upon any matter pending before any court.
(2) Any expert or skilled witness who shall have testified in any cause shall be allowed a witness fee including the cost of any exhibits used by such witness in the amount of $10 per hour or such amount as the trial judge may deem reasonable, and the same shall be taxed as costs.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Crittenden Orange Blossom Fruit & Aetna Cas. & Sur. Co. v. Stone, 492 So. 2d 1106 (Fla. 1st DCA 1986)…rule is understood to approve consideration of the attorney’s time expended in seeking a ruling on the amount of the fee. Likewise, this case is not the proper vehicle to recede from or erode our recent holding in W.A. Doss & Sons, Inc. v. Barbato, 487 So. 2d 377 (Fla. 1st DCA 1986) (holding, in accordance with Robert & Company Associates v. Zabawczuk, 200 So. 2d 802 (Fla.1967), that expert witness fees incurred by claimant in establishing the amount of fees cannot be awarded against carrier). The Supreme Co…1 / 2
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Executive Motors, Inc. v. Strack, 527 So. 2d 286 (Fla. 1st DCA 1988)…’s fee is based must be stated by the deputy in the order and the deputy must also set forth the specific criteria considered in setting the amount of the fee when it exceeds, as herein, the statutory schedule. See W.A. Doss & Sons, Inc. v. Barboto, 487 So. 2d 377 (Fla. 1st DCA 1986); Structural Forming, Inc. v. Mas, 440 So. 2d 488 (Fla. 1st DCA 1983). Turning to the cross-appeal, we agree with claimant’s contention that his attorney’s time, labor, and effort in pursuing the earlier, ancillary appeal may be…
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Taylor v. Fulmer-Orlando, 528 So. 2d 1224 (Fla. 1st DCA 1988)…nd factors set out in section 440.34(l)(a)-(h), Florida Statutes. Central Truck Lines, Inc. v. Coleman, 458 So. 2d 1145 (Fla. 1st DCA 1984); AT & T Technologies, Inc. v. Jackson, 478 So. 2d 488 (Fla. 1st DCA 1985); W.A. Doss & Sons, Inc. v. Barbato, 487 So. 2d 377 (Fla. 1st DCA 1986). Accordingly, we affirm the deputy’s finding of bad faith, reverse the amount of attorney’s fees awarded, and remand for reconsideration in light of the factors required under the statute and case law. AFFIRMED in part, REVER…
Authorities Cited
- Gray v. Attorney Gen., State of Fla. and/or State Attorney, Cir. Court, Volusia Cnty., Fla., 209 So. 2d 454 (Fla. 1968)
- Travieso v. Travieso, 474 So. 2d 1184 (Fla. 1985)
- Robert & Co. Assocs. & Fid. & Cas. Co. of N.Y. v. Zabawczuk, 200 So. 2d 802 (Fla. 1967)