Murray v. Mariner Health
| Decision Date | 23 October 2008 |
| Docket Number | No. SC07-244.,SC07-244. |
| Citation | 994 So.2d 1051 |
| Parties | Emma MURRAY, Petitioner, v. MARINER HEALTH and ACE USA, Respondents. |
| Court | Florida Supreme Court |
N. Meros, Jr. and Andy V. Bardos of Gray Robinson, P.A., Tallahassee, FL, on behalf of Florida Justice Reform Institute, Florida A.G.C. Council, Inc., Associated Builders and Contractors of Florida, Inc., the Florida Retail Federation, the National Federation of Independent Business Legal Foundation, Florida Transportation Builders Association, Inc., the Chamber of Commerce of the United States of America, and the Florida Chamber of Commerce; William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch, and Westcott, P.A., Winter Park, FL, on behalf of Zenith Insurance Company; Scott B. Miller of Hurley, Rogner, Miller, Cox, Waranch, and Westcott, P.A., Winter Park, FL, on behalf of Florida Association of Self Insurance (FASI); Marcia K. Lippincott of Marcia K. Lippincott, P.A., Lake Mary, FL, on behalf of Seminole County School Board and Preferred Governmental Claims Solutions, Inc.; Rayford H. Taylor of Stiles, Taylor and Grace, P.A., Atlanta, GA, Tamela Perdue of Stiles, Taylor and Grace, P.A., Tallahassee, FL, on behalf of Associated Industries of Florida, Inc., and Rayford H. Taylor of Stiles, Taylor and Grace, P.A., Atlanta, GA, Mary Ann Stiles of Stiles, Taylor and Grace, P.A., Tampa, FL, and Thomas A. Koval, Sarasota, FL, on behalf of Florida Insurance Council; and Mark L. Zientz of Mark L. Zientz, P.A., Miami, FL, on behalf of NPAC Worker's Compensation Section of The Florida Bar, as Amici Curiae.
In this case petitioner Emma Murray, the claimant in a workers' compensation case, challenges the constitutionality of the statute governing attorney fees in such cases, section 440.34, Florida Statutes (2003). In Murray v. Mariners Health/ ACE USA, 946 So.2d 38, 39 (Fla. 1st DCA 2006), the First District Court of Appeal expressly held that the statute as significantly amended in 2003 is constitutional. The district court rejected each of petitioner's challenges and found that the formula of subsection (1) governs the award of reasonable attorney fees under subsection (3). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
We need not address the constitutional issues raised in this case. See State v. Giorgetti, 868 So.2d 512, 518 (Fla.2004) (). We hold, based upon the plain language of the statute, that when a claimant is entitled to recover attorney fees from a carrier or employer as provided by section 440.34(3)(a), (b), (c), or (d), the claimant is entitled to recover "a reasonable attorney's fee." See § 440.34(3), Fla. Stat. (2003). Section 440.34(3), does not define "reasonable attorney's fee," and an ambiguity results when subsection (1) and subsection (3) are read together. Accordingly, we have determined that reasonable attorney fees for claimants, when not otherwise defined in the workers' compensation statute, are to be determined using the factors of rule 4-1.5(b) of the Rules Regulating the Florida Bar. See Lee Eng'g & Constr. Co. v. Fellows, 209 So.2d 454, 458 (Fla. 1968) ().
Petitioner, a certified nursing assistant, suffered an injury while assisting a coworker in lifting a patient. She was diagnosed with a uterine prolapse and underwent a hysterectomy. She filed a petition for workers' compensation benefits including temporary total disability, temporary partial disability, medical care, costs, and attorney fees. Respondents in this case, Mariner Health and ACE USA, the employer and its insurance carrier, responded by denying that any benefits were owed. At the hearing before the Judge of Compensation Claims (JCC), respondents contended that (1) no injury arose out of or in the course of employment; (2) the claim was fraudulent under section 440.105, Florida Statutes (2003), because petitioner provided an incomplete medical history;1 (3) the major contributing cause of claimant's prolapsed uterus was from her experience giving birth; and (4) no costs, fees, or interest were owed. After hearing all of the evidence and arguments, the JCC found petitioner's testimony to be credible and the testimony of the independent medical examiner "most convincing." Murray v. Mariners Health, OJCC Case No. 04-000323DFT (Fla. Div. of Admin. Hearings Compensation Order filed May 9, 2005) at 5. Accordingly, the JCC found that petitioner's claims were compensable and awarded her $3,244.21 in benefits.
When petitioner prevailed at the hearing, the next issue to be addressed by the JCC was attorney fees. Section 440.34, Florida Statutes (2003), governs attorney fees in workers' compensation cases. Subsections (1) and (3), the provisions at issue here, provide as follows:
(1) A fee, gratuity, or other consideration may not be paid for a claimant in connection with any proceedings arising under this chapter, unless approved as reasonable by the judge of compensation claims or court having jurisdiction over such proceedings. Any attorney's fee approved by a judge of compensation claims for benefits secured on behalf of a claimant must equal to 20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years. The judge of compensation claims shall not approve a compensation order, a joint stipulation for lump-sum settlement, a stipulation or agreement between a claimant and his or her attorney, or any other agreement related to benefits under this chapter that provides for an attorney's fee in excess of the amount permitted by this section. The judge of compensation claims is not required to approve any retainer agreement between the claimant and his or her attorney. The retainer agreement as to fees and costs may not be for compensation in excess of the amount allowed under this section.
. . . .
(3) If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney's fees. A claimant shall be responsible for the payment of her or his own attorney's fees, except that a claimant shall be entitled to recover a reasonable attorney's fee from a carrier or employer:
(a) Against whom she or he successfully asserts a petition for medical benefits only, if the claimant has not filed or is not entitled to file at such time a claim for disability, permanent impairment, wage-loss, or death benefits, arising out of the same accident;
(b) In any case in which the employer or carrier files a response to petition denying benefits with the Office of the Judges of Compensation Claims and the injured person has employed an attorney in the successful prosecution of the petition;
(c) In a proceeding in which a carrier or employer denies that an accident occurred for which compensation benefits are payable, and the claimant prevails on the issue of compensability; or
(d) In cases where the claimant successfully prevails in proceedings filed under s. 440.24 or s. 440.28.
Regardless of the date benefits were initially requested, attorney's fees shall not attach under this subsection until 30 days after the date the carrier or employer, if self-insured, receives the petition.
§ 440.34(1), (3), Fla. Stat. (2003). By the plain language of subsection (3), when, as in this case, a claimant hires an attorney and prevails after an employer and its insurance carrier (employer/carrier) deny benefits, the claimant is "entitled to recover a reasonable attorney's fee" from the employer/carrier.
The parties here agreed that petitioner was so entitled, but they disputed how to calculate the attorney fee award. At a subsequent hearing, petitioner argued that the JCC should determine the fee award after considering various factors that we articulated in Lee Engineering, factors which were previously listed in subsection (1) of the statute. See Lee Eng'g, 209 So.2d at 458-59. The respondents asserted, however, that the attorney fee amount had to be calculated in accordance with subsection (1), which provides a formula based on percentages of the monetary amount of the benefits awarded to the claimant.2
At the hearing on the fee award, attorneys who practice in the subject area and represent both claimants and employers and carriers testified to the customary hourly rate paid to attorneys in such case...
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