Crittenden Orange Blossom Fruit v. Stone

• Decision Date: 10 September 1987
• Docket Number: No. 69476,69476
• Parties: 12 Fla. L. Weekly 463 CRITTENDEN ORANGE BLOSSOM FRUIT, et al., Petitioners, v. Marvin STONE, Respondent.
• Court: Florida Supreme Court

Page 351

514 So.2d 351

12 Fla. L. Weekly 463

CRITTENDEN ORANGE BLOSSOM FRUIT, et al., Petitioners, v. Marvin STONE, Respondent.

No. 69476.

Supreme Court of Florida.

Sept. 10, 1987.

Rehearing Denied Nov. 20, 1987.

Daniel De Ciccio and Jamie D. Hoffman of De Ciccio & Broussard, P.A., Orlando, for petitioners.

George J. Adler, Orlando, for respondent.

GRIMES, Justice.

We have for review the case of Crittenden Orange Blossom Fruit v. Stone, 492 So.2d 1106 (Fla. 1st DCA 1986), because of its apparent conflict with Robert & Co. Associates v. Zabawczuk, 200 So.2d 802 (Fla.1967). Jurisdiction is predicated upon article V, section 3(b)(3), Florida Constitution.

Respondent Stone filed a worker's compensation claim for temporary total disability payments and the payment of medical bills. The deputy commissioner sustained Stone's claim and required petitioners, the employer and carrier, to pay his attorney's fees. In reaching his ruling, the deputy commissioner held three hearings. The first concerned the compensability of the claim; the second was directed toward whether petitioners denied the claim in bad faith; and the third was for the purpose of setting the amount of attorney's fees. The district court of appeal considered the case en banc in order to resolve an intradistrict conflict concerning attorney's fees. In the course of affirming the order, the court held that the award of attorney's fees should include the time spent by the claimant's attorney in preparing for and prosecuting the claim for attorney's fees. ¹ The court also made observations which implied that the recovery of costs in worker's compensation proceedings now included expert witness fees of those testifying as to the amount of attorney's fees despite the fact that in this case no effort was made to recover an expert witness fee for the testifying attorney.

In Zabawczuk, this Court held that the statute permitting the recovery of expert witness fees in worker's compensation proceedings did not include fees for witnesses appearing on behalf of attorneys who were claiming counsel fees payable under the act. The Court said:

While the point is novel, the provision for payment to witnesses testifying "in any proceeding under this chapter" is most reasonably construed, in view of the history of the statute, to proceedings for compensation to claimant rather than proceedings, essentially collateral, for determination of the amount of attorney's fees.

200 So.2d at 804.

More recently, in Travieso v. Travieso, 474 So.2d 1184 (Fla.1985), this Court authorized the taxing of expert witness fees for lawyers who testify as experts regarding reasonable attorney's fees in ordinary civil actions. The Court distinguished Zabawczuk, which had been cited as the primary authority to the contrary, by pointing out that the predicate for the decision in that case was the nature of the worker's compensation law which provides a simple, expeditious and inexpensive method of compensating employees who are injured in the workplace.

Nevertheless, in the instant case, the district court concluded that Zabawczuk was no longer relevant in light of the subsequent overhaul of the worker's compensation law in 1979. As the basis for its conclusion, the court said:

It is clear, however, that the present attorney's fees provisions found in section 440.34, Florida Statutes (1983), reflect a recognition by the legislature that in specific circumstances--namely, those covered by 440.34(3)(a)-(c)--without the intervention or potential intervention of an attorney acting for the claimant, medical or compensation benefits due the claimant are likely to be delayed or denied to the claimant. See, e.g., Sam Rogers Enterprises v. Williams, 401 So.2d 1388 (Fla. 1st DCA 1981). We are not persuaded, either by the structure of the Act itself, or our observations with respect to its operation over the past nearly seven years, that the award of attorney's fees to claimant's attorney under the present provisions can be realistically viewed as "collateral" to the purposes of the Act.

492 So.2d at 1110-11.

With all due respect, we cannot see how the 1979 amendments to the worker's compensation law had any effect on the applicability of Zabawczuk. In fact, as acknowledged by the district court, today's worker's compensation law retains and even places renewed emphasis upon the pre-1979 self-executing concept. In Travieso we declined to extend the scope of our ruling to worker's compensation proceedings, and we see no reason why we should change our position.

On the other hand, one of the arguments advanced by Stone has caused us to reconsider the manner in which attorney's fees are set in worker's compensation proceedings. Stone points out that unless they can be compensated, it is often an imposition on attorneys to have to leave their offices for long periods of time in order to testify at worker's compensation proceedings, particularly if substantial travel is involved. Yet, it is well settled that the testimony of an expert witness concerning a reasonable attorney's fee is necessary to support the establishment of the fee. In Re Estate of Cordiner, 497 So.2d 920 (Fla.2d DCA 1986); Mullane v. Lorenz, 372 So.2d 168 (Fla. 4th DCA 1979); Lyle v. Lyle, 167 So.2d 256 (Fla.2d DCA), cert. denied, 172 So.2d 601 (Fla.1964).

For much the same reason that we distinguish worker's compensation proceedings from other civil cases with...