Foliage Design Systems, Inc. v. Fernandez, No. 90-3382

CourtCourt of Appeal of Florida (US)
Writing for the CourtWENTWORTH
Citation589 So.2d 389
PartiesFOLIAGE DESIGN SYSTEMS, INC. and Crims, Inc., Appellants, v. Aurora FERNANDEZ, Appellee. 589 So.2d 389, 16 Fla. L. Week. D2897
Docket NumberNo. 90-3382
Decision Date13 November 1991

Page 389

589 So.2d 389
FOLIAGE DESIGN SYSTEMS, INC. and Crims, Inc., Appellants,
v.
Aurora FERNANDEZ, Appellee.
No. 90-3382.
589 So.2d 389, 16 Fla. L. Week. D2897
District Court of Appeal of Florida,
First District.
Nov. 13, 1991.
Rehearing Denied Dec. 12, 1991.

H. George Kagan and Thomas S. Eustis, of Miller, Kagan & Chait, P.A., Deerfield Beach, for appellants.

Barry A. Pemsler, of Barry A. Pemsler, P.A., Miami, for appellee.

Jerold Feuer, Miami, for amicus Academy of Florida Trial Lawyers.

WENTWORTH, Senior Judge.

This is an appeal from a final October, 1990 worker's compensation order granting attorney's fees based on evidence of the value of future medical benefits, and on stipulation as to fee entitlement and value of permanent total disability compensation awarded for a 1988 accident. We affirm on the single issue presented, concluding that the judge correctly rejected application of the 1989 amendment to Sec. 440.34(2), F.S., which added language (as technically revised in 1990) indicated by emphasis as follows:

"(2) In awarding a reasonable attorney's fee, the judge ... shall consider only those benefits to the claimant that the attorney is responsible for securing.... the term 'benefits secured' means benefits obtained as a result of the claimant's attorney's legal services rendered in connection with the claim for benefits. However, such term does not include future medical benefits to be provided on any date more than 5 years after the date the claim is filed." (e.s.)

The recent decision of this court in Sir Electric, Inc. v. Borlovan, 582 So.2d 22 (Fla. 1st DCA 1991), affirmed the same ruling. The opinion references "the recently enacted statutory cap on attorney's fees" and the argument "that a statutory amendment changing the measure of attorney's fees is substantive, and cannot be applied retroactively." 582 So.2d at 23. Appellant in the present case would explain Sir Electric as based simply on the fact noted there "that the E/C cite no authority for the contention that this provision is procedural and remedial, and applies retroactively" to benefits for accidents antedating the amendment. In contrast with that circumstance, we have here examined the exhaustive catalog of arguable authority provided by appellant. 1

Page 390

The quoted amendment of Sec. 440.34(2) may be correctly characterized as a computation proviso which does not directly control either the entitlement or "cap" on attorney's fees. It does, however, plainly place an absolute ceiling on valuation of one of the factors to be considered in applying the statutory formula. We are unable to distinguish rationally between an enactment which directly...

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4 practice notes
  • Antunez v. Whitfield, No. 4D06-4420 (Fla. App. 1/2/2008), No. 4D06-4420.
    • United States
    • Court of Appeal of Florida (US)
    • January 2, 2008
    ...after the worker's compensation claimant's injury may not be retroactively applied"); Foliage Design Systems, Inc. v. Fernandez, 589 So. 2d 389 (Fla. 1st DCA 1991) (amendment that placed a ceiling for computation of attorney's fees is substantive and cannot be applied retroactively); Sir El......
  • Antunez v. Whitfield, No. 4D06-4420.
    • United States
    • Court of Appeal of Florida (US)
    • April 16, 2008
    ...the worker's compensation claimant's injury may not be retroactively applied); Foliage Design Sys., Inc. v. Fernandez, 980 So.2d 1179 589 So.2d 389 (Fla. 1st DCA 1991) (amendment that placed a ceiling for computation of attorney's fees is substantive and cannot be applied retroactively); Si......
  • Paulk v. School Bd. of Palm Beach County, 92-107
    • United States
    • Court of Appeal of Florida (US)
    • March 10, 1993
    ...depositions were taken after the statute's effective date. We decline to extend the rulings in Foliage Design Systems, Inc. v. Fernandez, 589 So.2d 389 (Fla. 1st DCA 1991), and Sir Electric, Inc. v. Borlovan, 582 So.2d 22 (Fla. 1st DCA 1991), to the circumstances of this case. Those decisio......
  • City of Crestview v. Howard, No. 94-3658
    • United States
    • Court of Appeal of Florida (US)
    • July 13, 1995
    ...therefore 21-day grace period contained in rule in effect at time of accident applied); Foliage Design Systems, Inc. v. Fernandez, 589 So.2d 389 (Fla. 1st DCA 1991) (amendment to attorney's fee statute which precludes consideration of future medical benefits in computing attorney's fee awar......
4 cases
  • Antunez v. Whitfield, No. 4D06-4420 (Fla. App. 1/2/2008), No. 4D06-4420.
    • United States
    • Court of Appeal of Florida (US)
    • January 2, 2008
    ...after the worker's compensation claimant's injury may not be retroactively applied"); Foliage Design Systems, Inc. v. Fernandez, 589 So. 2d 389 (Fla. 1st DCA 1991) (amendment that placed a ceiling for computation of attorney's fees is substantive and cannot be applied retroactively); Sir El......
  • Antunez v. Whitfield, No. 4D06-4420.
    • United States
    • Court of Appeal of Florida (US)
    • April 16, 2008
    ...the worker's compensation claimant's injury may not be retroactively applied); Foliage Design Sys., Inc. v. Fernandez, 980 So.2d 1179 589 So.2d 389 (Fla. 1st DCA 1991) (amendment that placed a ceiling for computation of attorney's fees is substantive and cannot be applied retroactively); Si......
  • Paulk v. School Bd. of Palm Beach County, 92-107
    • United States
    • Court of Appeal of Florida (US)
    • March 10, 1993
    ...depositions were taken after the statute's effective date. We decline to extend the rulings in Foliage Design Systems, Inc. v. Fernandez, 589 So.2d 389 (Fla. 1st DCA 1991), and Sir Electric, Inc. v. Borlovan, 582 So.2d 22 (Fla. 1st DCA 1991), to the circumstances of this case. Those decisio......
  • City of Crestview v. Howard, No. 94-3658
    • United States
    • Court of Appeal of Florida (US)
    • July 13, 1995
    ...therefore 21-day grace period contained in rule in effect at time of accident applied); Foliage Design Systems, Inc. v. Fernandez, 589 So.2d 389 (Fla. 1st DCA 1991) (amendment to attorney's fee statute which precludes consideration of future medical benefits in computing attorney's fee awar......

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