Leather Shop v. Mills

• Citation: 592 So.2d 744
• Decision Date: 14 January 1992
• Docket Number: No. 91-240,91-240
• Parties: LEATHER SHOP and General Accident Group, Appellants, v. Robert MILLS, Appellee. 592 So.2d 744, 17 Fla. L. Week. D285
• Court: Court of Appeal of Florida (US)

Page 744

592 So.2d 744

LEATHER SHOP and General Accident Group, Appellants, v. Robert MILLS, Appellee.

No. 91-240.

592 So.2d 744, 17 Fla. L. Week. D285

District Court of Appeal of Florida First District.

Jan. 14, 1992.

Rex A. Hurley, Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellants.

Sylvan A. Wells, Daytona Beach, for appellee.

ZEHMER, Judge.

The Leather Shop (employer) and General Accident Group (carrier) appeal an order requiring them to pay claimant's attorney's fee of $8,000.00 and $688.95 in costs. We reverse the order and remand for further proceedings and more specific findings.

On April 5, 1988, Robert Mills, claimant, filed a claim for benefits, stating that he was injured on January 12, 1986, when he picked up a cash register from the floor and hurt his back while working for the employer. The claim requested permanent total disability (PTD) benefits, attorney's fees, and all future benefits not timely provided in accordance with the provisions of Chapter 440, Florida Statutes. After a hearing on the claim, the judge of compensation claims entered an order stating that "[t]he issue for my determination was stipulated by the parties to be the claimant's entitlement to disability benefits and/or wage loss benefits," and ruling that claimant was entitled to temporary total disability (TTD) benefits instead of PTD benefits. ¹ The order reserved jurisdiction to determine taxable costs and claimant's entitlement to and the amount of attorney's fees due. Thereafter, a hearing was held on these issues and the judge entered the order now appealed.

The employer and carrier raise two issues on this appeal: (1) whether the judge erred in requiring the carrier to pay claimant's attorney's fees in the absence of a specific finding of bad faith in the order and any record evidence to support such a finding; and (2) whether the judge erred in awarding attorney's fees based on the temporary total disability benefits awarded in the prior order when the claim and all of the litigation leading to that order addressed claimant's entitlement to permanent total disability benefits. Claimant contends that the order should be affirmed even though it does not state the basis for the attorney's fee award because, at the hearing, claimant's attorney asked the judge to take judicial notice of multiple notices to controvert filed by the carrier as the basis for the carrier's bad faith. Claimant also contends that the second issue is now res judicata and should not be entertained by this court because the employer and carrier had an opportunity to assert it in their initial appeal of the original order but chose instead to dismiss the appeal. Even if the issue is now reviewable, claimant argues, the order should still be affirmed because it is clear that claimant obtained compensation benefits as a direct result of his attorney's efforts.

Section 440.34, Florida Statutes (1985), ² provides in pertinent part:

(3) ... A claimant shall be responsible for the payment of his own attorney's fees, except that a claimant shall be entitled to recover a reasonable attorney's fee from a carrier or employer:

* * * * * * (b) In cases in which the deputy commissioner issues an order finding that the carrier has acted in bad faith with regard to handling an injured worker's claim and the injured worker has suffered economic loss. For the purpose of this paragraph, the term "bad faith" means conduct by the carrier in the handling of a claim which amounts to fraud; malice; oppression; or willful, wanton, or reckless disregard of the rights of the claimant. Any determination of bad faith shall be made by the deputy commissioner through a separate factfinding proceeding. The deputy commissioner shall issue a separate order which shall expressly state the specific findings of fact upon which the determination of bad faith is based;

(Emphasis added). This court has repeatedly held that this language in section 440.34(3)(b) requires that orders awarding attorney's fees based on bad faith or any other statutory ground expressly state the basis for the award and include specific findings of fact upon which the determination was made. Executive Motors, Inc. v. Strack, 527 So.2d 286 (Fla. 1st DCA), rev. denied, 534 So.2d 399 (Fla.1988) (order awarding the claimant attorney's fees reversed as facially insufficient because the order failed to state, among other things, the statutory ground upon which entitlement to the award was based, even though during the course of the hearing the deputy stated that the carrier's action in the cause, and the basis upon which he would award fees, was bad faith); Femenella v. Schreiber Food, Inc., 519 So.2d 1001 (Fla. 1st DCA 1988) (workers' compensation order awarding claimant attorney's fees based on economic loss without a finding of bad faith was facially invalid under section 440.34(3)(b), Florida Statutes (1985); cause remanded for an explicit finding on the issue of bad faith to support the judge's award of attorney's fees to be paid by the carrier).

In this case, although both parties contend in their appellate briefs that the judge "apparently" or "must have" based the award of attorney's fees on bad faith, the appealed order is silent as to the statutory basis for the judge's ruling and, therefore, is facially insufficient. Section 440.34(3)(b); Executive Motors, Inc. v. Strack, supra; Femenella v. Schreiber Food, Inc., supra. Claimant's argument that he asked the court to take judicial notice of several notices to controvert filed by the employer and carrier as the basis for his bad faith allegation is not supported by the record on appeal. The portions of the record claimant cites in his answer brief to support this contention indicate only that claimant...