Davis v. Keeto, Inc.

• Decision Date: 15 January 1985
• Docket Number: No. AW-288,AW-288
• Citation: 10 Fla. L. Weekly 173,463 So.2d 368
• Parties: 10 Fla. L. Weekly 173 Lula Mae DAVIS, Appellant, v. KEETO, INC., d/b/a Jiffy Maid Service, Appellee.
• Court: Florida District Court of Appeals

Page 368

463 So.2d 368

10 Fla. L. Weekly 173

Lula Mae DAVIS, Appellant, v. KEETO, INC., d/b/a Jiffy Maid Service, Appellee.

No. AW-288.

District Court of Appeal of Florida First District.

Jan. 15, 1985.

Rehearing Denied Feb. 19, 1985.

L. Barry Keyfetz of Keyfetz, Poses & Halpern, Miami, for appellant.

Sally R. Doerner of Walton, Lantaff, Schroeder & Carson, Miami, for appellee.

BOOTH, Judge.

This cause is before us on appeal from a workers' compensation order finding that the employer/carrier acted in bad faith and determining the amount of the claimant's attorney's fee.

The claimant suffered a compensable accident arising out of and in the course of her employment on March 19, 1981. As a result of the accident, the claimant suffered a serious eye injury in addition to soft tissue injuries. The claimant was initially paid temporary benefits through September 4, 1981, on which date the benefits were terminated. On December 9, 1982, a claim for impairment benefits was filed. A copy of this claim, accompanied by a doctor's report showing a 97 percent loss of vision in the eye, was furnished to the carrier. The carrier, through the adjuster, denied that they received the claim letter, the attached report, or the acknowledgment letter with the attached claim from the bureau. The case was noticed for hearing on December 21, 1982, setting pre-trial conference for March 3, 1983, and final hearing on March 25, 1983. After protracted litigation, on June 23, 1983, the employer/carrier agreed to pay to the claimant her $1,150 of impairment benefits and interest thereon, but resisted payment of penalties and attorney's fees, asserting that claimant was responsible for those fees.

A hearing on attorney's fees was held, and, by order entered November 10, 1983, the deputy commissioner found that the employer/carrier acted in bad faith and were accordingly responsible for attorney's fees. The deputy commissioner considered the amount in controversy ($1,335 in impairment benefits, penalties, and interest), the fee schedules, and all appropriate factors, and awarded the claimant's attorney $1,200 as a reasonable attorney's fee, entering the following order:

In connection with the amount of attorney fee to be paid by the employer/carrier, the undersigned Deputy Commissioner finds as follows. Counsel in the prosecution of this matter testified to the expenditure of 28.5 hours exclusive of proceedings in connection with penalties and attorney's fees. The case involved pre-trial conference, two hearings, motion hearings, three medical depositions, deposition of claimant. The time spent testified to by counsel for claimant has been properly documented. In addition thereto, counsel for claimant expended an additional 12.5 hours in connection with two hearings and deposition of carrier regarding attorney's fees and penalties. However, the primary purpose for said additional time expenditure of 12.5 hours was in connection with attorney's fees and with the aspect of penalties requiring a lesser degree of proof and flowing from the necessary efforts in connection with the attorney fee aspect. Accordingly, the undersigned Deputy Commissioner cannot consider any of said time expended in connection therewith as it may pertain to the issue of penalties and the Deputy Commissioner is mandated by appellate decisions that time spent in connection with attorney's fees is not time that can be considered in determining the amount of reasonable attorney fee.

Testimony indicated that a reasonable hourly rate on a contingency basis in the community for handling a worker's compensation matter would ordinarily be in the range of $125.00-$150.00 per hour. Charges at that level appear consistent with defense charges on a non-contingency basis. Both counsel herein are skilled practitioners. Counsel for claimant is known as a particularly well qualified practitioner in the field of workers' compensation, was formerly chairman of the workers' compensation section of the Florida Bar, has written several law review articles in the field of workers' compensation and is the associate editor of the Academy of Florida Trial Lawyers Journal and has written the workers' compensation column in connection therewith for the past ten years.

In addition to the time involved in the prosecution of the matter and the reasonable hourly rate in connection therewith, there are other factors set forth in the applicable statute for consideration by the Deputy Commissioner in assessing attorney's fees. The contingency and degree thereof is a factor to be considered. Although initially there did not appear to be anything too complex about this case, there was unquestionably resistance to provision of the benefits sought and a high degree of skill was necessary in view of the diligent defense.

Counsel for claimant has no regular relation with claimant herein; counsel spent 28.5 hours of professional time to assist claimant, exclusive of attorney's fee aspect which may not be considered. Counsel for claimant testified that as a result of his representation of claimant herein he was required to decline his services to other injured workers seeking his services in workers' compensation matters and declined other more lucrative liability claims. It was contended by counsel for claimant that the issue in connection with the amount of attorney fee must be considered in the format of simply whether the injured worker has any meaningful redress under the workers' compensation law to obtain skilled counsel for necessary representation to obtain benefits withheld, and if so, that the amount of an attorney fee must predominantly...