G & A Bldg. Maintenance v. Makuski

• Decision Date: 29 July 1987
• Docket Number: No. BQ-335,BQ-335
• Citation: 12 Fla. L. Weekly 1831,510 So.2d 1074
• Parties: 12 Fla. L. Weekly 1831 G & A BUILDING MAINTENANCE and Sentry Claim Services, Appellants/Cross-Appellees, v. Rose Helen MAKUSKI, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 1074

510 So.2d 1074

12 Fla. L. Weekly 1831

G & A BUILDING MAINTENANCE and Sentry Claim Services, Appellants/Cross-Appellees, v. Rose Helen MAKUSKI, Appellee/Cross-Appellant.

No. BQ-335.

District Court of Appeal of Florida First District.

July 29, 1987.

R. Ty Hodges, of Miller, Hodges, Kagan & Chait, Miami, for appellants/cross-appellees.

Edward Schroll, Miami, for appellee/cross-appellant.

BARFIELD, Judge.

In this appeal and cross-appeal from a workers' compensation order awarding attorney fees under section 440.34, Florida Statutes (1983), the employer and carrier assert that the award is patently excessive and in excess of the amount claimed, and that it is unsupported by competent substantial evidence in the record. The claimant asserts that the deputy commissioner's reduction of hours and hourly rate, which he had found to be reasonable, is not supported by competent substantial evidence in the record. We reverse.

The claimant sustained permanent eye damage as the result of scar tissue which developed from injury to her cornea in a 1984 accident. The employer/carrier initially paid on the claim, then took the position that the claimant's eye disability was not causally related to an accident. Pursuant to a stipulation approved by the deputy commissioner, the claimant received a lump sum payment of $5,000 and the employer/carrier agreed to provide future medical care, including a possible corneal transplant. The parties agreed that the claimant's attorney was entitled to a reasonable attorney fee to be paid by the employer/carrier.

At the hearing to determine the amount of the fee, claimant's attorney presented an affidavit in which he stated that he represented the claimant from September 1985 to July 1986, that the issue involved in this case was "somewhat novel," requiring multiple medical depositions, that he devoted 43.9 hours to the case, that he was required to travel from his office in Dade County to the Keys, and that the fees customarily charged in his area for similar legal services vary from $150 to "in excess of" $200 per hour. He also testified in response to the deputy commissioner's questions that a rate of $300/hour was not unusual "on a contingency fee basis", and that a reasonable attorney fee in this case would be $8,000. He admitted on cross-examination that his time log was a reconstruction, that the case was not particularly complex from a medical standpoint once the proper frame of reference was developed, and that he charges $80/hour for defense work.

Counsel for the employer/carrier testified that 37 hours would be a reasonable figure for the time spent by the claimant's attorney, that attorneys are not paid $200-300/hour on a regular basis under usual circumstances, that the potential corneal transplant remains highly speculative, and that a reasonable value for attorney fees would be $3,250.

In his order, the deputy commissioner found that the claimant's attorney had expended 43.9 hours of professional time, not including the time involved at the hearing, and that this number of hours was reasonable, but reduced the hours to 35 for purposes of determining a reasonable fee. He also found, based on his own experience, that $300/hour was a reasonable rate for an attorney of this attorney's caliber, but reduced the...