ERNEST L. TAYLOR, APPELLANT/CROSS-APPELLEE,
v.
ARTHUR FULMER-ORLANDO AND FIGA INSURANCE COMPANY, APPELLEES/CROSS-APPELLANTS
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Court affirmed the finding of bad faith by employer/carrier in refusing to accept claimant as permanently and totally disabled, but reversed and remanded the attorney's fees award because the deputy commissioner failed to determine benefits secured and apply statutory fee-setting factors.
An employer/carrier's failure to accept a claimant as permanently and totally disabled prior to the hearing constitutes bad faith, but attorney's fees must be recalculated by considering the benefits secured and applying statutory guidelines.
[1] An employer/carrier's failure to accept a claimant as permanently and totally disabled prior to the hearing on PTD benefits constitutes bad faith when supported by compet…
[2] Attorney's fees in workers' compensation cases must be calculated by determining the benefits secured and expressly applying the statutory factors under section 440.34(1)…
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Join FLexlaw to unlock all legal intelligenceA workers' compensation claimant appealed an order awarding $12,500 in attorney's fees based on the employer/carrier's bad faith refusal to accept him…
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SHIVERS, Judge.
The claimant in this workers’ compensation case appeals the sufficiency of a 1987 order awarding $12,500 in attorney’s fees based on the employer/carrier’s (E/C’s) bad faith failure to accept the claimant as permanently and totally disabled (PTD). The employer/carrier cross-appeal the deputy commissioner’s underlying finding of bad faith. We affirm the issue on cross appeal, finding there to be competent and substantial evidence in the record to support the deputy’s finding that the E/C’s failure to accept the claimant as PTD prior to the January 3, 1984 hearing on PTD benefits amounted to bad faith. Burnup & Sims, Inc. v. Ozment, 440 So. 2d 29 (Fla. 1st DCA 1983). However, we reverse that portion of the order determining the amount of attorney’s fees, based on the deputy’s failure to determine the amount of benefits secured by the claimant’s attorney, section 440.34(1), Florida Statutes; School Board of Collier County v. Salter, 457 So. 2d 1132 (Fla. 1st DCA 1984), and his failure to expressly consider the guidelines and 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, REVERSED in part, and REMANDED.
MILLS and WIGGINTON, JJ., concur.
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Citator
Cited By
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Fla. Ins. Guar. Ass'n v. Hollice C. Renfroe, 568 So. 2d 962 (Fla. 1st DCA 1990)…elf-executing nature of Florida’s Workers’ Compensation Act. It cannot be said, however, that this recognition of the deterrent effect of a bad faith fee award amounts to a pronouncement that such an award is a penalty. In Taylor v. Fulmer-Orlando, 528 So. 2d 1224 (Fla. 1st DCA 1988), this court affirmed an award of bad faith attorney’s fees against FIGA. Although we did not there address the arguments made by FIGA in the instant case, we find that those arguments are not so convincing as to merit a different…
Authorities Cited
- The Sch. Bd. OF Collier Cnty. v. Salter, 457 So. 2d 1132 (Fla. 1st DCA 1984)
- Metro. Dade Cnty. v. Bertram Craven, 458 So. 2d 1145 (Fla. 3d DCA 1984)
- Burnup & Sims, Inc. v. Ozment, 440 So. 2d 29 (Fla. 1st DCA 1983)
- W.A. Doss & Sons, Inc. v. Barbato, 487 So. 2d 377 (Fla. 1st DCA 1986)
- AT & T Techs., Inc. v. Jackson, 478 So. 2d 488 (Fla. 1st DCA 1985)