Embry-Riddle Aeronautical University v. Vestal
| Decision Date | 09 June 1981 |
| Docket Number | No. WW-277,EMBRY-RIDDLE,WW-277 |
| Citation | 399 So.2d 1033 |
| Parties | AERONAUTICAL UNIVERSITY and the Hartford Insurance Group, Appellants, v. Helen VESTAL, Appellee. |
| Court | Florida District Court of Appeals |
Steven A. Rissman of Cooper & Rissman, P. A., Orlando, for appellants.
Paul Smalbein of Smalbein, Eubank, Johnson, Rosier & Bussey, Rockledge, for appellee.
Employer/carrier appeal the order of the Deputy Commissioner finding claimant temporarily totally disabled and awarding her attorney's fees under 440.34(2) (b), Florida Statutes (1979). We affirm on all points; we discuss only the question of attorney's fees.
In September 1979 while employed with Embry-Riddle Aeronautical University claimant suffered a flare up of preexisting dermatitis due to contract with ditto ink. The employee/employer relationship was stipulated and employer/carrier took the position that claimant's condition was temporarily aggravated by an incident at work but her continuing difficulties were not related to this exposure. A claim was filed for various benefits including attorney's fees and costs and the pretrial stipulation indicated that attorney's fees were in issue.
During questioning of claimant's witness regarding his efforts to contact the insurance company on behalf of claimant the following colloquy occurred:
(Claimant): Did you ask him to start paying her compensation?
(Carrier): Your Honor, I'm going to object to this line of questioning. It's irrelevant. We've stipulated we haven't paid benefits. That's on your stipulation sheet.
(Claimant): We've got a claim for attorney's fees, your Honor, and we're going to prove a wall of willful ignorance, where they, by design, didn't want to know the situation. They're making me prove it.
(Carrier): Your Honor, if we're going to prove attorney's fees, why don't we prove them by the usual customary way, where we have an attorney's fee hearing on it, which is what you've done now since probably the last ten years, rather than having attorney's fees proven at the claimant's hearing.
(Claimant): This is part of the claimant's
Deputy Commissioner: All right. I'll allow it. Overruled.
(Claimant): We can have an attorney's fee hearing later, whether or not the facts justify
Deputy Commissioner: This is for entitlement. All right. Continue.
On appeal, appellant urges that under Section 440.34(2)(b) entitlement to attorney's fees based on bad faith may only be determined at a hearing separate and apart from the hearing on other matters. Appellant further argues that allowing this issue to be presented at the "benefits" hearing, deprived it of constitutional due process.
We cannot agree. The pretrial stipulation specifically noted that attorney's fees were controverted and appellant's objection relates to the amount of attorney's fees and not to entitlement. The "usual customary way" of dealing with attorney's fees is to...
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- Laurie Basile And Leanne Krajewski
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Florida Min. & Minerals v. Brantley, AF-401
...him to have received a determination to that effect prior to the perfection of the E/C's appeal. See Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981). MILLS and SHAW, JJ., ...
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Brevard County Mental Health Center v. Kelly
...faith nor meaningful hearing on this issue, the attorney's fee awarded claimant on this basis is error. Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981). However, there is competent substantial evidence to support the award on the basis of Section 440.34(3)......
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Wendy's of Brevard v. Stickney, AQ-157
...on the question of bad faith, we have recognized that separate hearings do occur and are proper. Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033, 1034 (Fla. 1st DCA 1981); Sears Termite & Pest Control v. Spearman, 417 So.2d 292, 293 (Fla. 1st DCA 1982). While it may better se......