GENERAL KINETICS AND TRAVELERS INSURANCE CO., APPELLANTS,
v.
CHARLES BUTTS, APPELLEE
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General Kinetics and Travelers Insurance appealed a workers' compensation judge's award of attorney's fees to counsel for Charles Butts that exceeded the statutory formula by more than ten times. The Florida appellate court reversed and remanded because the judge failed to analyze the statutory factors required to justify departure from the formula fee.
The court held that when departing from the statutory fee formula, the judge must analyze each of the eight statutory factors to determine whether the overall effect demonstrably justifies an increase or decrease in the formula fee. The judge's mere listing of the factors without analyzing them in relation to the specific facts was insufficient.
[1] A judge of compensation claims must analyze the statutory factors for determining attorney's fees when departing from the statutory formula.
[2] Judicial consideration of statutory factors for attorney's fees requires an analysis of each factor in relation to the specific facts of the case.
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Join FLexlaw to unlock all legal intelligence“requires analysis of each factor to determine whether, when considered as a whole, the overall effect of these factors demonstrably justifies an increase or decrease in the formula fee”
This establishes the legal standard for when a judge departs from the statutory fee formula in workers' compensation cases.
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Join FLexlaw to unlock all legal intelligenceDuring four years of representation, Butts' attorney obtained $10,112 in workers' compensation benefits for his client. Application of the statutory f…
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JOANOS, Chief Judge.
General Kinetics and Travelers Insurance Company have appealed an order of the judge of compensation claims awarding counsel for appellee Charles Butts an attorney’s fee in excess of the fee resulting from application of the statutory formula set forth in section 440.34(1), Florida Statutes. We reverse, and remand for entry of an order which reflects analysis of the statutory factors pertaining to departure from the formula fee.
During the four years in which he represented Butts, his attorney obtained benefits totalling $10,112. Appellants conceded that Butts was entitled to bad faith attorney’s fees, and the parties agreed that the amount would be determined by affidavit. Application of the statutory formula to the $10,112 in benefits obtained by Butts’ counsel results in a fee of $2266.80 (25% of the first $5000 in benefits secured, 20% of the second $5000, and 15% of the remainder). Appellee’s fee petition sought a total fee of $24,240 ($150 per hour for 161.6 hours); two supporting affidavits averred that fees of $24,000 and $24,420 were warranted. Appellants filed a single affidavit in opposition, suggesting a fee of $12,500.
Section 440.34(l)(a)-(h) sets forth the factors to be considered by the judge in increasing or decreasing the statutory fee:
(a) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(b) The likelihood, if apparent to the claimant, that the acceptance of the particular employment will preclude employment of the lawyer by others or cause antagonisms with other clients.
(c) The fee customarily charged in the locality for similar legal services.
(d) The amount involved in the controversy and the benefits resulting to the claimant.
(e) The time limitation imposed by the claimant or the circumstances.
(f) The nature and length of the professional relationship with the claimant.
(g) The experience, reputation, and ability of the lawyer or lawyers performing services.
(h)The contingency or certainty of a fee.
In his order awarding a $24,000 fee, the judge listed these factors individually and stated that he had considered them, but did not analyze the factors with respect to the facts of the case.
The requirement that the judge consider the factors set forth in section 440.34(l)(a)~ (h) “requires analysis of each factor to determine whether, when considered as a whole, the overall effect of these factors demonstrably justifies an increase or decrease in the formula fee.” Marsh v. Benedetto, 566 So. 2d 324, 325 (Fla. 1st DCA 1990). The order appealed does not include such an analysis. Therefore, we cannot determine that the $24,000 fee, which is more than ten times that resulting from application of the statutory formula, was justified. We reverse, and remand for entry of an order which reflects an analysis of the statutory factors in terms of the specific circumstances of this case.
Reversed and remanded with directions.
BOOTH and WOLF, JJ., concur.
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Levine, Busch, Schnepper & Stein, P.A. v. Winn Dixie Stores, Inc., 695 So. 2d 798 (Fla. 1st DCA 1997)…section 440.34(1), combined with other facts in this case, justify the $15,000 award. The JCC should determine on remand the fee to which Levine, Busch is entitled, and articulate his specific findings in the final order. General Kinetics v. Butts, 586 So. 2d 1331 (Fla. 1st DCA 1991). This analysis must include an evaluation of the number of hours all attorneys expended in obtaining claimant’s benefits, for the purpose of apportioning a reasonable amount to Levine, Busch. The JCC was not authorized to consid…
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Wheeler v. S. Fla. State Hosp. & State of Fla., 752 So. 2d 1285 (Fla. 1st DCA 2000)…ed to reverse the order because the judge failed to make adequate factual findings on each of the statutory factors enumerated in section 440.34(1). See, e.g., Dobbs v. Suncoast Acoustics, 590 So. 2d 7 (Fla. 1st DCA 1991); General Kinetics v. Butts, 586 So. 2d 1331 (Fla. 1st DCA 1991); Mele v. Superior Pontiac GMC, Inc., 536 So. 2d 348 (Fla. 1st DCA 1988). In light of the decision in South Florida State Hospital v. Wheeler, 745 So. 2d 1044 (Fla. 1st DCA 1999), the appellee’s cross appeal is without merit.…
Authorities Cited
- Marsh v. Carlos Benedetto and the Division of Workers' Compensation, 566 So. 2d 324 (Fla. 1st DCA 1990)