Punsky v. Clay County Bd. of County Commissioners

• Decision Date: 13 May 2011
• Docket Number: No. 1D10–3269.,1D10–3269.
• Citation: 60 So.3d 1088
• Parties: Robert PUNSKY, Appellant,v.CLAY COUNTY BOARD OF COUNTY COMMISSIONERS and Scibal Associates, Appellees.
• Court: Florida District Court of Appeals

60 So.3d 1088

Robert PUNSKY, Appellant,
v.
CLAY COUNTY BOARD OF COUNTY COMMISSIONERS and Scibal Associates, Appellees.

No. 1D10–3269.

District Court of Appeal of Florida, First District.

March 31, 2011.Rehearing Denied May 13, 2011.

[60 So.3d 1090]

Kelli Biferie Hastings and Geoff Bichler of Bichler & Kelley, P.A., Maitland, for Appellant.Richard M. Stoudemire of Saalfield, Shad, Jay, Stokes, & Inclan, P.A., Jacksonville, for Appellees.WEBSTER, J.

In this workers' compensation appeal, claimant seeks review of an award of prevailing-party costs to the employer and carrier, contending that: (1) the judge of compensation claims erred in awarding costs totaling $8,992.93 because, to the extent the employer and carrier are entitled to costs at all, the award may not exceed $250 in cases where they prevail on the issue of compensability; and (2) if prevailing-party costs may be awarded to the employer and carrier, they are entitled to only $1,116.70 because chapter 440 precludes recovery of costs incurred for depositions, experts and independent medical examinations. We affirm.

I.

Following an unsuccessful merits hearing, claimant appealed the denial of his claim to this court. Sitting en banc, we affirmed the order of the judge of compensation claims. See Punsky v. Clay County Sheriff's Office, 18 So.3d 577 (Fla. 1st DCA) (en banc) (affirming the finding that the employer and carrier had rebutted the presumption of compensability found in section 112.18(1), Florida Statutes (2004), and certifying a question of great public importance to the Florida Supreme Court), review denied, 22 So.3d 539 (Fla.2009).

Thereafter, the employer and carrier, as the prevailing parties, filed a motion pursuant to section 440.34(3), Florida Statutes (2004), seeking to tax costs, representing that they had incurred $10,622.87 in defending against claimant's petition for benefits. The judge of compensation claims concluded that the employer and carrier were entitled to recover $8,992.93, rejecting claimant's arguments that

[60 So.3d 1091]

sections 440.19(6) and 440.24(4), Florida Statutes (2004), controlled. In response to a motion for rehearing filed by claimant, the judge entered an amended final order, rejecting arguments that sections 440.13(5) and 440.30, Florida Statutes (2004), applied, and reaffirming the rejection of claimant's previously advanced statutory arguments. This appeal follows.

II. A.

In his first point on appeal, claimant contends that section 440.19(6) permits an award of either zero costs or, at most, $250 in costs against a claimant in a case where compensability is denied because there is no fund of money from which to deduct the $250. Section 440.19(6) reads:

When recovery is denied to any person in a suit brought at law or in admiralty to recover damages for injury or death on the ground that such person was an employee, that the defendant was an employer within the meaning of this chapter, and that such employer had secured compensation of such employee under this chapter, the limitations period set forth in this section shall begin to run from the date of termination of such suit; however, in such an event, the employer is allowed a credit of his or her actual cost of defending such suit in an amount not to exceed $250, which amount must be deducted from any compensation allowed or awarded to the employee under this chapter.

To the extent the issues raised by claimant concern statutory construction, our review is de novo. See Palm Beach County Sch. Dist. v. Ferrer, 990 So.2d 13, 14 (Fla. 1st DCA 2008). Contrary to claimant's contention, section 440.19(6) applies only when a claimant first proceeds against an employer at law or in admiralty, and such relief is denied on the basis of workers' compensation exclusivity/immunity. See § 440.11(1), Fla. Stat. (2004) (“[t]he liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof ... and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death ...”). Pursuant to the plain language of this statute, after termination...