ROBERT MINERD, APPELLANT,
v.
WALGREENS AND KEMPER NATIONAL INSURANCE COMPANIES, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In this workers' compensation appeal, the court reversed the Judge of Compensation Claims' award of attorney's fees because the JCC's determinations regarding the reasonable hourly rate and hours expended were not supported by competent, substantial evidence. The court found that the JCC improperly reduced the claimant's counsel's time entries and hourly rate based on subjective judgment rather than evidence.
The court reversed and remanded, holding that neither the hourly rate of $200.00 nor the reduction to 18 hours was supported by competent, substantial evidence. An attorney's hourly rate must be predicated upon expert testimony regarding reasonableness, and reductions to time entries cannot rest solely on the JCC's subjective beliefs without supporting evidence from the employer/carrier.
[1] A Judge of Compensation Claims (JCC) must predicate an award of attorney's fees on expert testimony regarding the reasonableness of the hourly rate.
[2] A JCC cannot make deductions to a claimant's counsel's sworn affidavit and expert testimony regarding hours reasonably expended when the opposing party offers no rebuttal…
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“in deciding what is a reasonable hourly rate, [the JCC] may consider the fee customarily charged in the area for similar legal work. In making such assessment, the award must be predicated upon expert testimony regarding the reasonableness of the hourly rate.”
Establishes that attorney's hourly rates must be based on expert testimony, not JCC subjective judgment
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRobert Minerd, a workers' compensation claimant, sought attorney's fees. Claimant's counsel testified that a reasonable hourly rate was $265.00 per ho…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Attorney'S Fees In Workers' Compensation cases and more on FLexlaw
PER CURIAM.
In this workers’ compensation appeal, claimant, Robert Minerd, challenges an order of the Judge of Compensation Claims (JCC) awarding him attorney’s fees. We reverse and remand for proceedings consistent with this opinion.
The first issue claimant raised was whether the JCC erred in concluding that a reasonable hourly rate was $200.00. The standard of review in a workers’ compensation appeal where the issue presented involves a reasonable hourly rate for an attorney’s fees is whether competent, substantial evidence supports the JCC’s conclusion. See Morris v. Dollar Tree Store, 869 So. 2d 704 (Fla. 1st DCA 2004).
In Moms, this Court held that it was improper for the JCC to award an hourly fee of $168.00 when the only witness offering evidence as to the fee amount testified that a case of this type warranted an hourly fee of $200.00. This Court explained:
[I]n deciding what is a reasonable hourly rate, [the JCC] may consider the fee customarily charged in the area for similar legal work. In making such assessment, the award must be predicated upon expert testimony regarding the reasonableness of the hourly rate.
869 So. 2d at 706 (citations omitted).
In the instant case, the JCC concluded that $200.00 was a reasonable hourly rate. There is, however, no competent, substantial evidence in the record to support this conclusion. Claimant’s counsel opined that a reasonable hourly rate would be $265.00 per hour. Employer/carrier’s (E/C’s) counsel opined that a reasonable hourly rate would be $225.00 per hour. This was the only evidence presented on the issue.
The second issue claimant raised was whether the JCC erred in concluding that claimant’s counsel expended only 18 hours on establishing entitlement to attorney’s fees. The standard of review in a workers’ compensation appeal in which the issue presented involves the reasonableness of an attorney’s fee award is whether competent, substantial evidence supports the award. See Sanchez v. Woerner Mgmt., Inc., 867 So. 2d 1173 (Fla. 1st DCA 2004). In Sanchez, this Court held that it was improper for a JCC to make deductions to claimant’s counsel’s sworn affidavit and expert testimony regarding the hours that claimant’s counsel represented he reasonably expended in securing benefits on behalf of his client, when neither were rebutted with anything more than argument by the E/C. This Court explained:
The most telling deficiency in the fee awarded is that no evidence was submitted [o]n behalf of the numerous itemized reductions. Appellee, the [E/C], made no effort to cross-examine claimant’s lawyer regarding the reasonableness of the fee he submitted for approval. The decreases appear to rest entirely upon the JCC’s subjective belief and personal experience of what to him seemed reasonable for the amount of time represented by counsel in serving his client. Such an analysis makes informed appellate review impossible.
Id. at 1174.
In the instant case, claimant’s counsel submitted two time sheets representing that he expended a total of 112 hours on claimant’s case. The JCC made reductions and deletions to entries in the time sheets which he deemed to be clerical/non-attorney tasks, memo to status and interoffice communications with assistant, vague/non-specific tasks, tasks unnecessary or unrelated to benefits secured, and excessively billed in relation to tasks claimed. There is, however, no competent, substantial evidence in the record to support any of the JCC’s reductions or deletions. E/C neither cross-examined claimant’s counsel regarding the reasonableness of the entries in the time sheets nor presented any evidence on the subject. Therefore, as in Sanchez, informed appellate review is impossible here because it appears that the JCC’s reductions and deletions were based solely on the JCC’s own subjective and personal experience of what he deemed reasonable and not on competent, substantial evidence.
REVERSED AND REMANDED for further proceedings consistent with this opinion.
VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Yeimis Banegas v. ACR Env't, Inc., 228 So. 3d 734 (Fla. 1st DCA 2017)…r argument of counsel nor “the JCC’s reductions and deletions .,. based solely on the JCC’s own subjective and personal experience of what he deemed reasonable” are sufficient to rebut a claimant’s counsel’s sworn affidavit. See Minerd v. Walgreens, 962 So. 2d 955, 957 (Fla. 1st DCA 2007). Because the record here contains no evidence to rebut Claimant’s counsel’s sworn affidavit or the representations of the Employer/Carrier’s counsel, the JCC erred in reducing the time entries contained within that affidavit…
-
Gomez v. Frank Crum, Inc., 228 So. 3d 735 (Fla. 1st DCA 2017)…r argument of counsel nor ‘the JCC’s reductions and deletions ... based solely on the JCC’s own subjective and personal experience of what he deemed reasonable’ are sufficient to rebut a claimant’s counsel’s sworn affidavit. See Minerd v. Walgreens, 962 So. 2d 955, 957 (Fla. 1st DCA 2007).” Because the record before us contains no evidence rebutting Claimant’s counsel’s sworn affidavit or the representations of the Employer/Carrier’s counsel, the JCC erred in deleting the time entries contained within the'aff…
-
Neville v. J.C. Penney Corp., 135 So. 3d 525 (Fla. 1st DCA 2014)…was a proper fee based upon the number of hours she found were reasonable to secure the benefits. The reasonableness of an attorney’s fee award is reviewed for competent substantial record evidence in support of the award. See Minerd v. Walgreens, 962 So. 2d 955, 956 (Fla. 1st DCA 2007). Over time, this Court has provided guidance on what is expected of JCCs in awarding E/C-paid fees. In Levine, Busch, Schnepper & Stein, P.A. v. Winn Dixie Stores, Inc., 695 So. 2d 798, 799-800 (Fla. 1st DCA 1997), because t…
Authorities Cited
- Sanchez v. Woerner Mgmt., 867 So. 2d 1173 (Fla. 1st DCA 2004)
- Morris v. Dollar Tree Store & Specialty Risk Servs., 869 So. 2d 704 (Fla. 1st DCA 2004)