Lundy v. Four Seasons Ocean Grand Palm Beach

• Decision Date: 20 June 2006
• Docket Number: No. 1D05-0109.,1D05-0109.
• Citation: 932 So.2d 506
• Parties: Jean L. LUNDY and Charles A. Williams, Appellants, v. FOUR SEASONS OCEAN GRAND PALM BEACH and Liberty Insurance Group, Appellees.
• Court: Florida District Court of Appeals

932 So.2d 506

Jean L. LUNDY and Charles A. Williams, Appellants, v. FOUR SEASONS OCEAN GRAND PALM BEACH and Liberty Insurance Group, Appellees.

No. 1D05-0109.

District Court of Appeal of Florida, First District.

June 20, 2006.

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Charles Williams of Charles Williams Attorney At Law P.A., Lake Worth; and Jane-Robin Wender of Wender & Associates, P.A., Delray Beach, for Appellants.

L. Barry Keyfetz, Miami, for Amicus Curiae/Academy of Florida Trial Lawyers.

Tara L. Sa'id of Law Office of Amy L. Warpinski, Jacksonville, and Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, for Appellees.

Steven A. Rissman and Elizabeth Lynch-Mulligan of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Amicus Curiae/Claims Center.

Mary Ann Stiles of Stiles, Taylor & Grace, P.A., Tampa, and Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, for Amicus Curiae/Associated Industries of Florida, Inc.

Thomas A. Koval, Sarasota, and Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, for Amicus Curiae/Florida Insurance Council.

PER CURIAM.

The claimant seeks review of a final order of the judge of compensation claims (JCC), denying stipulated attorney's fees as being in excess of the fees permitted by section 440.34(1), Florida Statutes (2004), and approving a fee permitted by section 440.34(1). On appeal, the claimant contends that: (1) section 440.34(1) should be construed to allow the payment of a reasonable fee that exceeds the mandated percentage of benefits secured; (2) the JCC should have approved the parties' joint stipulation agreement providing for fees in excess of that allowed by statute pursuant to Spitzer v. Bartlett Bros. Roofing, 437 So.2d 758 (Fla. 1st DCA 1983); and (3) section 440.34(1) violates the separation of powers doctrine, the due process clause, the equal protection clause, the right to counsel, and the right to freely contract as provided by the Florida Constitution. For the reasons set forth herein, we reject each of the claimant's arguments and affirm the order of the JCC.

The claimant and the e/c entered into a joint stipulation, providing that the e/c would pay the claimant $1,700 in past indemnity benefits and pay counsel for the claimant $1,900 for securing the benefits. The JCC denied approval of the stipulated fees, reasoning that she was without authority to approve a fee in excess of $340, the amount allowed by section 440.34(1). The JCC entered an order approving the statutory fee of $340, and this appeal followed.

The JCC properly construed section 440.34(1). In Wood v. Fla. Rock Indus., 929 So.2d 542 (Fla. 1st DCA 2006)(amended May 25, 2006, to certify a question of great public importance), this court explained that "the court must presume that the legislature intended the amended statute [section 440.34(1)] to mean what it clearly says." The statute begins by generally providing that no fee may be paid under chapter 440 unless approved as reasonable, and then specifically addresses the approval of fees "for benefits secured" by setting forth the formula for determining the amount of fees to be paid. A JCC may approve a fee as reasonable under section 440.34(1) when the fee equals the statutory percentage of benefits secured. Wood; see also Parker v. Baker, 499 So.2d 843, 845 (Fla. 2d DCA 1986)("Where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control.").

Spitzer does not serve as an exception to the provisions set forth in section 440.34(1). In Spitzer, the parties stipulated that the claimant was entitled to three months of catastrophic loss benefits even though the claimant's injuries did not demonstrate an entitlement to such benefits under the law. 437 So.2d at 759-60. The JCC rejected the stipulation because it was based on a misconception of the law. Id. at 760-61. Reversing, this court noted that "[i]t is the policy of the law to encourage and uphold stipulations in order to minimize litigation and expedite the resolution of disputes." Id. at 760.

Though Spitzer is still good law, it is not controlling in this case because section 440.34(1) expressly prohibits a JCC from approving a fee in excess of the statutory percentage. There was no statutory prohibition limiting the actions of the JCC in Spitzer.

We now address the constitutional challenges raised by the claimant. Preliminarily, we note that a statute is presumed to be valid, and every presumption is to be indulged in favor of the validity of that statute. Golden v. McCarty, 337 So.2d 388, 389 (Fla.1976); McElrath v. Burley, 707 So.2d 836, 839 (Fla. 1st DCA 1998). The party challenging a statute has the burden to demonstrate the unconstitutionality of the statute by negating every conceivable basis for upholding the law. Burley, 707 So.2d at 839. The claimant in this case has not met that burden.

The legislature did not encroach upon the powers of the judiciary by amending section 440.34(1) to restrict the payment of fees to a percentage of the benefits secured. Workers' compensation is a creature of statute governed by the provisions of chapter 440, Florida Statutes. Globe Sec. v. Pringle, 559 So.2d 720, 722 (Fla. 1st DCA 1990). The legislature may limit the amount of fees that a claimant's attorney may charge because the state has a legitimate interest in regulating attorney's fees in workers' compensation cases. Samaha v. State, 389 So.2d 639, 640 (Fla. 1980). Furthermore, the legislature is charged with setting forth the criteria it deems will further the purpose of workers' compensation law and will result in a reasonable fee. See id.; see also Schick v. Dep't of Agric. & Consumer Servs., 599 So.2d 641, 644 (Fla.1992). Therefore, section 440.34(1) does not violate the separation of powers doctrine.

Nor does section 440.34(1) violate the equal protection clause or the due process clause, which, inter alia, protects the right to be represented by counsel. In limiting fees to a percentage of the benefits secured, section 440.34(1) bears a reasonable relationship to the state's interest in regulating fees so as to preserve the benefits awarded to the claimant. See Samaha, 389 So.2d at 640. Section 440.34(1) is not discriminatory, arbitrary or oppressive because it applies to all claimants in a workers' compensation proceeding, and sets forth a definite formula for determining attorney's fees so as to protect the claimant's interest in retaining a substantial portion of the benefits secured. Therefore, section 440.34(1) does not deny a claimant equal protection, due process, or the right to be represented by counsel.

The claimant has also failed to demonstrate that section 440.34(1) impermissibly restricts the right to freely contract. A statute restricting the right to contract will not be invalidated if the restriction was enacted to protect the public's health, safety, or welfare. Khoury v. Carvel Homes S., Inc., 403 So.2d 1043, 1046 (Fla. 1st DCA 1981). The restrictions set forth in section 440.34(1) were enacted to protect the public's welfare by ensuring that a worker is able to retain a substantial portion of awarded benefits so as to prevent the burden of support for that worker from being cast upon society. Therefore, the statute does not offend the right to freely contract.

Although the claimant abandoned the issue of whether section 440.34(1) denies access to courts during oral argument, we note that the statute has not been shown to deny access. In the initial brief, the claimant contended that the statute denies access to courts because it impairs a claimant's ability to retain counsel. The claimant's argument is unpersuasive because it lacks evidentiary support. The claimant has failed to demonstrate that the statute has unduly burdened a claimant's ability to retain counsel in order to secure benefits, or that the statute limits the types of benefits a claimant is authorized to pursue under chapter 440. Because the claimant has not demonstrated that section 440.34(1) has abolished or unduly burdened a claimant's right to obtain benefits under chapter 440, we cannot conclude that the statute denies access to courts. See Burley, 707 So.2d at 839; Strohm v. Hertz Corp., 685 So.2d 37, 39 (Fla. 1st DCA 1996).

In conclusion, the claimant has not demonstrated that section 440.34(1) is constitutionally infirm or that the JCC otherwise erred in declining to approve a fee in excess of the fee permitted by section 440.34(1). Therefore, we affirm the order of the JCC. As in Wood, however, we certify the following question of great public importance:

DO THE AMENDED PROVISIONS OF SECTION 440.34(1), FLORIDA STATUTES (2003), CLEARLY AND UNAMBIGUOUSLY ESTABLISH THE PERCENTAGE FEE FORMULA PROVIDED THEREIN AS THE SOLE STANDARD FOR DETERMINING THE REASONABLENESS OF AN ATTORNEY'S FEE TO BE AWARDED A CLAIMANT?

AFFIRMED.

DAVIS and BENTON, JJ., concur; ERVIN, J., concurs with opinion.

ERVIN, J., concurring.

I concur with the majority's disposition of the constitutional issues that it has specifically addressed. I also concur with the question certified. In addition, I strongly doubt that the Florida worker's compensation attorney-fee statute, section 440.34(1), Florida Statutes (2003), could be subjected to a successful facial constitutional challenge which requires the challenger to establish that no set of circumstances exists under which the statute could be determined valid in that such "challenge considers only the text of the statute, not its application to a particular set of circumstances." See Cashatt v. State, 873 So.2d 430, 434 (Fla. 1st DCA 2004). I also note that attorney-fee legislation in many of the states requires each party to pay his or her own attorney, regardless of whether the party prevails, and no constitutional provision appears to be implicated. See 8 Arthur Larson & Lex...