City of Miami v. Bell

• Decision Date: 16 September 1992
• Docket Number: No. 91-1878,91-1878
• Citation: 606 So.2d 1183
• Parties: 17 Fla. L. Week. D2182 CITY OF MIAMI, Appellant, v. Ronald V. BELL, Appellee.
• Court: Florida District Court of Appeals

Page 1183

606 So.2d 1183

17 Fla. L. Week. D2182

CITY OF MIAMI, Appellant, v. Ronald V. BELL, Appellee.

No. 91-1878.

District Court of Appeal of Florida,

First

District.

Sept. 16, 1992.

A. Quinn Jones, III, City Atty. and Ramon Irizarri and Kathryn S. Pecko, Asst. City Attys., Miami, for appellant.

Richard A. Sicking, Miami, for appellee.

ON MOTION FOR REHEARING

ZEHMER, Judge.

Upon consideration of the City's motion for rehearing, the original opinion filed in this case is withdrawn and the following opinion is substituted therefor. In light of the revisions in this substituted opinion, the motion for rehearing is denied.

This is another of the many workers' compensation appeals by the City of Miami arising out of the supreme court's decision in Barragan v. City of Miami, 545 So.2d 252 (Fla.1989). This appeal questions the retroactive application of that decision, whether the claim for past benefits offset in violation of state law is barred by the doctrine of res judicata, whether the award of a 10% penalty is error, and in what manner the Barragan offset of combined workers' compensation and disability pension benefits in excess of claimant's average monthly wage is to be accomplished. Finding no error in any of these respects, we affirm the appealed order.

In January 1985, Ronald Bell, a firefighter employed by the City, was injured in a compensable accident. After a period of temporary disability, he began drawing permanent total disability (PTD) compensation benefits on September 24, 1987, the same date that his service-connected disability retirement pension benefits also became effective. From that date until August 1, 1989, the City offset Bell's PTD benefits in the amount of $1,330.03 per month against his disability retirement monthly pension benefit of $2,594.83 on the authority of the City of Miami ordinance held invalid in Barragan. ¹ As a result, the maximum combined benefits paid to Bell during that period never exceeded his monthly pension amount and, of course, never reached his average weekly wage of $809.67 ($3481.58 monthly). Effective August 1, 1989, shortly after the supreme court had denied rehearing in its Barragan decision on July 14, 1989, the City ceased taking this offset and began paying Bell his full PTD benefits of $1,320.10 plus full pension benefits of $2,594.83 monthly. The City did not give retroactive effect to the Barragan decision and thus did not pay any past offset benefits.

On July 24, 1989, Bell filed a claim for the withheld benefits under the Barragan decision. On August 14, 1989, the City filed its notice to controvert ² Bell's recently filed claim on the ground that claimant had been paid all benefits due. In view of the City's action terminating the offset as of August 1, 1989, its notice to controvert must be construed as implicitly rejecting any retroactive application of the Barragan decision. After the hearing, the judge of compensation claims ordered the City to pay the full amount of past benefits due under the Barragan decision from September 24, 1987, through August 1, 1989, and awarded a 10% penalty pursuant to section 440.20, Florida Statutes (1985), based on the City's failure to controvert the claim within the 10-day period specified in subparagraph (6) of that section. The order recognized that the City could limit combined benefits to the amount of claimant's average weekly wage pursuant to the Barragan decision, resulting in a deduction of $433.35 from total monthly benefits of $3914.93, but made no provision in the order for effectuating this offset. The judge rejected the City's contention that Bell's claim was barred under the doctrine of res judicata by reason of a previously filed claim and award in 1988 for medical benefits. ³

The City raises four points on this appeal. After hearing lengthy oral arguments by the parties and giving this case careful consideration, we affirm the order in all respects for the reasons now set forth.

I.

The City's first point contends that the order errs in applying the supreme court's Barragan decision retroactively. The City argues that Barragan overruled numerous decisions of Florida intermediate appellate courts upholding the offset under the Miami ordinance after the repeal of section 440.09(4) in 1973, and that the City had detrimentally relied on these decisions during the years it had taken the offsets pursuant to the ordinance invalidated by the supreme court's "surprise" decision holding that the ordinance "flies in the face of state law." Retrospective application of Barragan, the City argues, will, by judicial construction, abridge and impair the rights, positions and courses of action validated by the appellate courts of this state until Barragan was decided by the supreme court. Further, the City argues, Barragan should be applied prospectively, and not retrospectively, to avoid "inequitable results" because otherwise Bell and other similarly situated claimants will receive monies that they had no expectation they were legally entitled to receive and that they did not attempt to secure until after the supreme court "dropped" the Barragan bomb.

We can readily understand that the Barragan decision has generated something of a financial crisis for the City, and we are not entirely unsympathetic to the City's impassioned plea for relief. However, we find no valid legal basis to support the City's arguments against the retroactive application of the Barragan decision, this court having previously decided this point to the contrary in City of Miami v. Burnett, 596 So.2d 478 (Fla. 1st DCA 1992). In that case we followed our decision in City of Daytona Beach v. Amsel, 585 So.2d 1044 (Fla. 1st DCA 1991), which held that Barragan is to be retroactively applied to compensable injuries occurring after the July 1, 1973, repeal of section 440.09(4). ⁴

II.

The City's second point contends that it was error to rule that Bell's claim for the offset was not barred as being mature when the earlier claim for medical benefits was filed in 1988. The City points out that section 440.09(4), which had authorized the offset, was repealed in 1973, so that Bell's claim for past monies withheld pursuant to the City's offset was mature at the time of the 1988 proceeding on Bell's claim for medical benefits and thus should have been asserted in the claim for medical benefits to avoid an improper "splitting" of claims. Since the offset claim was not filed at that time, the City argues, it is now barred by the doctrine of res judicata.

There is no merit in this argument. In Wagner v. Baron, 64 So.2d 267 (Fla.1953), the supreme court held:

The cases are legion which hold that res judicata is not a defense in a subsequent action where the law under which the first judgment was obtained is different than that applicable to the second action, or there has been an intervening decision, or a change in the law between the first and second judgment, creating an altered situation. [Citations omitted.]

"The doctrine of res judicata as to the finality of the judgment and the doctrine of law of the case as to the binding effect of interlocutory orders in litigation are rules of convenience 'designed to prevent repetitious law suits over matters which have once been decided and which have remained substantially static, factually and legally (and must give way where there has been a change in the fundamental controlling legal principles). It is not meant to create vested rights in decisions that have become obsolete or erroneous with time.' " [Citations omitted.]

64 So.2d at 267-68 (emphasis added). In Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, 210 So.2d 750, 753-54 (Fla. 4th DCA 1968), the court explained that the doctrine of res judicata extends only to legal rights and relations of the parties as fixed by the facts determined by that judgment; when other facts or conditions intervene before the second suit, furnishing a new basis for the claims and defenses of the respective parties, the issues are no longer the same and the former judgment cannot be pleaded in bar of the second action.

Because the supreme court's Barragan decision changed the applicable law from that previously announced in the intermediate appellate court decisions, Bell's claim is governed by the exception to the bar of res judicata recognized in the above-cited decisions. The City had accepted Bell as PTD in 1987 and was paying him full PTD compensation benefits, although taking an offset in the amount of such benefits against his disability pension benefits in accordance with the intermediate appellate court decisions then validating that course of action. As noted by the supreme court in Barragan, under the case law existing at the time this claim was filed, several appellate opinions had upheld the City's right to take the offset under the Miami pension ordinance even though section 440.09(4) had been repealed in 1973. Bell's claim for medical benefits awarded in the order of May 25, 1988, did not include any claim for compensation benefits; that order did not purport to adjudicate in any manner Bell's future right to PTD compensation benefits without offset should the law change. Obviously, after the City began taking the offset in 1987, Bell could have made a claim that the City's ordinance was unconstitutional, as Barragan had done. But Bell was not obliged to do so in order to prevent the doctrine of res judicata from barring a future claim in the event the governing law should change, so long as such claim was not otherwise barred by applicable statutes of limitation, which it was not in this instance.

III.

The City's third point contends that it was error to award a 10% penalty under section 440.20, Florida Statutes (1985), ⁵ on the retroactively awarded setoff benefits. The appealed order recites in respect to this award:

The claimant is entitled to a penalty of 10% on all benefits awarded by this order. See ...