Femenella v. R.L. Schreiber Food, Inc., BM-384

• Decision Date: 15 April 1987
• Docket Number: No. BM-384,BM-384
• Court: Florida District Court of Appeals
• Parties: 12 Fla. L. Weekly 1033 John FEMENELLA, Appellant/Cross-Appellee, v. R.L. SCHREIBER FOOD, INC. and U.S. Fidelity & Guaranty Company, Appellees/Cross-Appellants.

Page 1001

519 So.2d 1001

12 Fla. L. Weekly 1033

John FEMENELLA, Appellant/Cross-Appellee, v. R.L. SCHREIBER FOOD, INC. and U.S. Fidelity & Guaranty Company, Appellees/Cross-Appellants.

No. BM-384.

District Court of Appeal of Florida,

First District.

April 15, 1987.

Rehearing Denied March 2, 1988.

Ronnie Klein Witlin of Witlin & Witlin, Miami, for appellant/cross-appellee.

Anthony J. Beisler, Ft. Lauderdale, for appellees/cross-appellants.

SHIVERS, Judge.

Appellee/cross-appellant R.L. Schreiber Food, Inc. and U.S. Fidelity and Guaranty Company, the employer/carrier, appeal from an order they allege is erroneous because it awarded attorney's fees without an explicit finding of bad faith. The issue on appeal is whether a deputy commissioner may award attorney's fees based on a claimant's economic loss without making a concurrent finding that the carrier acted in bad faith. We answer that question in the negative, and remand for an explicit determination on the issue of bad faith.

Claimant injured his left leg and lower back while working as a warehouseman for the employer/carrier. On April 2, 1986, the deputy commissioner held a hearing to determine claimant's request for penalties and interest on late payments of benefits which claimant alleged were due him and to resolve the issue of whether claimant was entitled to attorney's fees and costs because of the employer/carrier's alleged bad faith handling of the claim. The deputy commissioner determined that claimant was entitled to interest on the late payment of his TTD benefits but concluded that penalties were not appropriate since it appeared that upon receipt of the necessary documentation the carrier made a proper temporary total payment. The deputy commissioner calculated the interest due claimant as $43.20 observing that he found "the carrier in all situations has conducted itself in a manner of cooperation with this claimant, even to the degree of completing forms for him. There is nothing in the evidence which would reflect the carrier in any way acted in bad faith or in an unconscionable manner." As to attorney's fees, the deputy commissioner found claimant had required representation of counsel and had suffered economic loss as evidenced by the award of interest for the employer/carrier's late payment of TTD benefits. Accordingly, the deputy commissioner awarded claimant attorney's fees in the amount of $500, and denied his request that the carrier pay for costs of the proceedings. From...