Combustion Engineering, Inc. v. Cote

• Decision Date: 01 April 1987
• Docket Number: No. BN-273,BN-273
• Citation: 505 So.2d 533,12 Fla. L. Weekly 896
• Parties: 12 Fla. L. Weekly 896 COMBUSTION ENGINEERING, INC. and the Travelers Insurance Company, Appellants, v. Lionel COTE, Appellee.
• Court: Florida District Court of Appeals

Page 533

505 So.2d 533

12 Fla. L. Weekly 896

COMBUSTION ENGINEERING, INC. and the Travelers Insurance Company, Appellants, v. Lionel COTE, Appellee.

No. BN-273.

District Court of Appeal of Florida First District.

April 1, 1987.

Rehearing Denied May 4, 1987.

Thomas H. McDonald, The Travelers Ins. Co., Orlando, for appellants.

J. Michael Matthews of Fisher & Matthews, Altamonte Springs, for appellee.

ERVIN, Judge.

The employer/carrier (e/c) appeals an order of the deputy commissioner (dc) awarding attorney's fees. Finding that the award was contingent in nature and that the contingency upon which the award was based did not occur, we vacate the order and remand the cause to the dc for further proceedings.

The e/c was held responsible for attorney's fees in the instant case pursuant to Section 440.34(3)(c), Florida Statutes, after the claimant had prevailed on the issue of compensability for benefits due, as a result of his establishing that he had contracted the occupational disease of asbestosis. The dc awarded claimant's attorney a fee of $32,500, and reserved jurisdiction to award additional attorney's fees, if, first, the appellate court in another case then pending on appeal should find that claimant is entitled to a higher average weekly wage (AWW), which would then have the effect of increasing the benefits secured to the claimant through the intervention of his attorney, and, second, if and when the claimant's future medical expenses are "reduced to a certainty." The e/c appealed both the reservations of jurisdiction and the amount of the attorney's fee awarded.

The dc erred in reserving jurisdiction to enter an additional award of attorney's fees contingent upon the outcome of the appeal on the issue of AWW. ¹ We initially observe that attorney's fees are to be based on an "attorney's services in securing claimant's reasonably predictable benefits flowing from the finding of compensability." Polote Corp. v. Meredith, 482 So.2d 515, 517 (Fla. 1st DCA 1986) (e.s.); cf. Samper v. W.B. Johnson Properties, Inc., 481 So.2d 88 (Fla. 1st DCA 1986) (dc was correct in refusing to denominate an attorney's fee award as "interim"). We find that while the appeal of AWW was pending, the total benefits which might be secured to claimant could not as a matter of law be considered "reasonably predictable." The deputy in the case on review clearly contemplated that the $32,000-fee award was contingent upon this court's affirmance of a separate, earlier order which had fixed the amount of the AWW as of the date of claimant's last injurious occupational exposure to asbestos. Once this court in Cote v. Combustion Engineering, Inc., 502 So.2d 500 (Fla. 1st DCA 1987), reversed the prior order of the dc, by holding that the AWW should have been determined as of the date the worker's disability commenced, rather than at the time of his last exposure to the injurious substance, the amount of the AWW was substantially increased, thereby increasing also the amount of benefits secured to claimant through his attorney's efforts. As a result of the reversal, an essential underpinning of the entire attorney fee award in the case below was extinguished, requiring that the order on review be vacated.

In so saying, we observe that at the time the deputy entered his order setting the attorney fee award, which was based in part on an AWW amount later reversed, the earlier order fixing the AWW was merely...