Lockett v. Smith

• Decision Date: 21 May 1954
• Citation: 72 So.2d 817
• Parties: LOCKETT v. SMITH et al.
• Court: Florida Supreme Court

Page 817

72 So.2d 817

LOCKETT v. SMITH et al.

Supreme Court of Florida, En Banc.

May 21, 1954.

Rehearing Denied July 20, 1954.

J. Ben Watkins, Sanchez, Watkins & Watkins, Tallahassee, and Harry Goodmark, West Palm Beach, for petitioner.

Earnest, Lewis, Smith & Jones, West Palm Beach, Rodney Durrance and Burnis Coleman, Tallahassee, for respondents.

HOBSON, Justice.

The claim with which we are concerned in this workmen's compensation case was for an additional amount of twenty percent of delinquent compensation payments due the claimant as the result of an award previously entered by the Deputy Commissioner. After hearing the evidence with respect to this claim, the Deputy Commissioner awarded the claimant twenty percent of the amount of the previous award then delinquent, pursuant to Section 440.20(6), Florida Statutes, F.S.A., but refused to grant an attorney's fee under Section 440.34, Florida Statutes, F.S.A., for services rendered by claimant's attorney at the hearing above mentioned. The full Commission affirmed the Deputy's order and claimant now petitions for certiorari to review the order of the Commission.

The provisions of the Workmen's Compensation Act now before us are the following:

'440.20 Payment of compensation

* * *

* * *

'(6) If any compensation, payable under the terms of an award, is not paid within fourteen days after it becomes due, there shall be added to such unpaid compensation an amount equal to twenty per cent thereof, which shall be paid at the same time as, but in addition to such compensation, unless review of the compensation order making such award is had as provided in § 440.27.'

'440.34 Attorney's fees; costs; penalty for violations '(1) If the employer or carrier shall file notice of controversy as provided in § 440.20 of this chapter, or shall decline to pay a claim on or before the twenty-first day after they have notice of same, or shall otherwise resist unsuccessfully the payment of compensation, and the injured person shall have employed an attorney at law in the successful prosecution of his claim, there shall, in addition to the award for compensation be awarded reasonable attorneys fee, * * *' (Emphasis added.)

Petitioner contends that it was error to deny him a reasonable attorney's fee because the award of the additional twenty percent under Section 440.20 was an award of additional compensation and therefore covered by Section 440.34. Respondent contends just as vigorously that the Deputy was correct in holding this additional award to be a penalty, as to which no provision is made in Section 440.34 for payment of fees to counsel.

This case is one of first impression in Florida and so far as we are informed the point has never been decided elsewhere. Indeed, according to Professor Larson, only four states, including Florida, approach the problem of attorney fees in workmen's compensation cases by making provision for such fees at the hearing or trial level by express statute. Larson on Workmen's Compensation (1952) Section 83.12. Some authority is available, however, on the construction of statutory provisions pertaining to extra payment for delinquency as in Section 440.20(6) above.

Section 25 of the New York Workmen's Compensation Act, McK.Consol.Laws, c. 67, reads in part as follows: 'If the employer or his insurance carrier shall fail to make payments of compensation according to the terms of the award within ten days thereafter, except in case of an appeal, there shall be imposed a penalty equal to twenty percentum of the unpaid compensation * * *.' (Emphasis added.) This 'penalty' was imposed and, of course, called a 'penalty' in Hart v. Perkins, 258 N.Y. 66, 179 N.E. 261, which was cited as persuasive in construing the comparable section of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 914(f), in Twine v. Locke, 2 Cir., 68 F.2d 712, cited by respondent. The language of the section of the federal statute last cited is substantially identical with that of our own statute, and in the Twine case was said to have been based upon the New York Act. Subsequent federal cases, e. g., Arrow Stevedore Co. v. Pillsbury, 9 Cir., 88 F.2d 446, and Travelers Insurance Co. v. Branham, D.C., 65 F.Supp. 512, in mentioning the amount of Longshoremen's Act makes payable for delinquency have called it a 'penalty'. Parts of our Workmen's Compensation Law were taken from the New York Act and the Longshoremen's Act, Royer v. United States Sugar Corp., 148 Fla. 537, 4 So.2d 692. But neither of these statutes has a provision for attorney fees comparable with our own, and in none of the cases cited above was the question now confronting us presented, nor was it of the least importance to decide whether or not the sum required to be paid was in fact in the nature of a penalty. See also 58 Am.Jur., Workmen's Compensation, Section 549, p. 919, where the word 'penalty' is used to describe the increased payment for delinquency, but without analysis.

Under the Florida Workmen's Compensation Law, 'compensation' is defined as 'the money allowance payable to an employee or to his dependents as provided for in this chapter.' F.S. § 440.20(11), F.S.A. And see Royer v. United States Sugar Corp., supra, 4 So.2d 692. A literal application of this definition would support petitioner's contention that the twenty percent prescribed by Section 440.20(6) is 'compensation' but this would seem, without more, to be too superficial an analysis in view of the interpretation given by this court to Section 440.54. The...