Gilman v. South Florida Water Management Dist.

• Decision Date: 25 July 1991
• Docket Number: No. 88-3174,88-3174
• Citation: 584 So.2d 591
• Parties: 16 Fla. L. Weekly D1957 Mosco GILMAN, Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT and Gallagher Bassett Services, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 591

584 So.2d 591

16 Fla. L. Weekly D1957

Mosco GILMAN, Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT and Gallagher Bassett Services, Inc., Appellees.

No. 88-3174.

District Court of Appeal of Florida First District.

July 25, 1991.

Paul A. Nugent, Wagner, Nugent, Johnson, Roth, Romano, Eriksen & Kupfer, P.A., West Palm Beach, for appellant.

Michael A. Edwards, West Palm Beach, for appellees.

ZEHMER, Judge.

The claimant, Mosco Gilman, appeals an order entered in this workers' compensation case that dismissed his claim for an increase in average weekly wage and attorneys' fees. The motion was granted in part pursuant to rule 4.110(b), Florida Workers' Compensation Rules, for failure to timely prosecute the claim for attorneys' fees in respect to past benefits obtained under a Stipulation and Order of December 1, 1983. ¹ We reverse because sufficient activity to advance the claim occurred before the motion to dismiss was filed.

The claimant was injured on August 8, 1978, and eventually filed a claim for workers' compensation benefits and application for hearing "to determine if additional medical attention is necessary; determination of proper compensation rate; determination of the period when temporary total benefits applied; determination of when permanent partial disability applied, if at all; determination of whether or not Claimant is permanently totally disabled; penalties, interest, costs and attorneys' fees, and production of documents." A hearing was set and thereafter canceled pursuant to a Joint Stipulation and Order agreed to by the claimant and the employer and carrier, and thereafter approved by the judge of compensation claims on December 1, 1983. The December 1, 1983, stipulation and order purported to resolve all issues ripe for determination at that time except for attorneys' fees, and jurisdiction was reserved to determine this issue at a later date. Compensation benefits were thereafter paid pursuant to the stipulation and order.

On July 1, 1987, the claimant filed an amended claim for benefits, seeking an increased adjustment to the average weekly wage by adding group insurance values and pension contribution, penalty, interest, attorneys' fees, and costs. The claimant also filed an application for hearing with the amended claim and sent a notice to produce to the employer and carrier on this date. These documents were filed with the deputy commissioner.

The following activity took place after the filing of the amended claim. A letter dated July 2, 1987, was sent by the claimant's attorney to the attorney for the employer and carrier in which the issues regarding the AWW adjustment and attorneys' fees due for obtaining benefits under the 1983 Joint Stipulation and Order were discussed. Again, on July 15, 1987, the claimant's attorney wrote to the attorney for the employer and carrier complaining that information previously requested had not been furnished as yet. On August 5, 1987, the claimant's attorney served the employer and carrier with a motion to compel production of the documents requested in the notice served on July 1. Letters similar to the August 5 letter were sent on August 21 and September 28, 1987.

On November 10, 1987, the employer and carrier responded to the claimant's motion to compel production by letter to the claimant's attorney. The letter set forth certain information regarding AWW and the social security offset being taken and forwarded certain documents described therein. The letter also refers to the attorneys' agreement to cancel the hearing on the motion set for that date. Accordingly, on November 25, 1987, claimant's attorney wrote the employer and carrier's attorney as follows:

Please recall we cancelled the November 10, 1987, motion to compel hearing, and we are in receipt of your November 10, 1987, letter and items requested in our motion to compel.

Items no. 2 and 3 of the July 1, 1987, notice to produce were not forwarded.

The SSA forms do not include the initial entitlement amount nor average current earnings figure necessary to calculate the offset.

We await this information within ten days to avoid time before the Deputy Commissioner. Additionally, please respond to our several requests regarding entitlement of attorney's fees for past benefits.

The next letter in the record, chronologically, is dated February 10, 1988, from the claimant's attorney to the employer and carrier's attorney asking him to disregard a prior letter of January 11, 1988, regarding certain information on AWW and social security benefits that had since been received. This letter also asked for additional information in respect thereto.

On May 13, 1988, the deputy commissioner sent out a notice to all parties setting this cause for hearing on October 21, 1988. The notice described the "subject of the hearing" as "(1) Average weekly wage rate increase to include group insurance values and pension contribution; (2) Penalty and interest, and (3) Attorney's fees and costs."

On June 2, 1988, the employer and carrier's attorney replied to the February 10 letter from the claimant's attorney in part as follows:

With reference to your letter dated February 10, 1988 as to whether the AWW/CR should be amended, I cannot agree based upon my client's motion to Dismiss a copy of which is attached and should be self-explanatory.

However, I can agree on the following amounts should the Deputy Commissioner rule that an amendment is appropriate....

* * * * * *

It is my client's position that PTD benefits were timely accepted so that no attorney's fee is due on these benefits. Please submit a demand to settle attorney's fees on benefits obtained in the 12/1/83 Stipulation and Order.

The motion to dismiss so referred to was filed with the deputy commissioner by letter dated June 7, 1988.

The employer and carrier's motion to dismiss alleged two grounds for dismissal. It sought dismissal of the amended claim to adjust AWW on grounds that such matter had been finally adjudicated in the December 1983 stipulation and order and could not now be reopened. Regarding attorneys' fees, the motion alleged that "Any claim for attorneys' fees and costs should be barred by Rule 11(b), W.C.R.P. and the employer/carrier moves for dismissal. See Jerry Chapman, Inc. v. Ivey, 448 So.2d 11 (Fla. 1 DCA 1984) (copy attached)." ²

At the hearing no testimony was presented and the case was considered on the tendered documentary evidence described above and argument by the attorneys. The deputy commissioner entered an order granting the motion to dismiss on both grounds, reciting in pertinent part:

Claimant further argues that a claim for attorney's fees pertaining to the Joint Stipulation and Order dated December 1, 1983, should not be dismissed for lack of prosecution under current Rule 4.110 W.C.R.P. [prior Rule 11(b) W.C.R.P.] since the amended claim for benefits dated July 1, 1987 including a claim for "attorney's fees and costs" was filed prior to the Motion to Dismiss. Counsel for the claimant at the hearing related that any attorney's fee claim on prior benefits pertained only to benefits addressed in the Joint Stipulation and Order dated December 1, 1983 (which reserved jurisdiction on attorney's fees) although this was certainly not clear from any of the claims for benefits. Claimant cites numerous cases for the proposition that there is essentially a "race to the court house," that is, any record activity prior to the filing of a Motion to Dismiss for lack of prosecution will defeat said Motion. However, reliance upon these cases is misplaced. Section 440.19(1)(d) Fla.Stat. requires that all claims be made with specificity...