Rivers v. SCA Services of Florida, Inc.

• Decision Date: 13 May 1986
• Docket Number: No. BJ-62,BJ-62
• Citation: 488 So.2d 873,11 Fla. L. Weekly 1106
• Parties: 11 Fla. L. Weekly 1106 Dennis RIVERS, Appellant, v. SCA SERVICES OF FLORIDA, INC., and Hartford Insurance Group, Appellees.
• Court: Florida District Court of Appeals

Page 873

488 So.2d 873

11 Fla. L. Weekly 1106

Dennis RIVERS, Appellant, v. SCA SERVICES OF FLORIDA, INC., and Hartford Insurance Group, Appellees.

No. BJ-62.

District Court of Appeal of Florida First District.

May 13, 1986.

Rehearing Denied June 16, 1986.

Ben R. Patterson, of Patterson & Traynham, Tallahassee, for appellant.

James N. McConnaughhay and David A. McCranie, of Karl, McConnaughhay, Roland, Maida & Beal, P.A., Tallahassee, for appellees.

ZEHMER, Judge.

Claimant appeals an order setting the amount of attorney's fees for the employer's bad faith failure to pay workers' compensation benefits. The order was entered in proceedings held pursuant to our decision in Rivers v. SCA Services of Florida, Inc., 465 So.2d 634 (Fla. 1st DCA 1985). Finding error in the Deputy Commissioner's determination of the amount of a reasonable fee, we reverse.

The determination of the amount of the attorney's fee was submitted by the parties upon the facts contained in a stipulation and attorneys' affidavits concerning the amount and value of claimant's attorney's services. By letter of August 20, 1985, counsel for the employer and carrier sent such an affidavit of an attorney to the deputy and recited in the cover letter that the parties had stipulated claimant's attorney obtained benefits for claimant which approximated $1,000.

The deputy entered an order on September 3, 1985, which awarded a fee of $1,500 to claimant's attorney. The order, approving the stipulation of the parties and accepting as true the facts recited therein, found that the amount of benefits obtained for plaintiff was $459.19, plus interest of $85.69, and that claimant's attorney is entitled to a reasonable attorney's fee for his services. The order further found, based on the stipulation and affidavits submitted by the parties, that claimant's attorney devoted 39.1 hours to legal services in this case, which "was not the usual workers' compensation case" because it involved difficulty regarding interpretation of the average weekly wage statute. The deputy's order recited that he also considered the skills and qualifications of claimant's attorney, who has been a member of the bar since 1970 specializing in workers' compensation law and enjoyed the reputation as an expert in this speciality, and concluded that the experience, reputation, and ability of the attorney performing services for claimant is considered outstanding. The deputy found that the fees customarily charged in the locality for similar legal services ranged from $75 to $150 per hour and that this was a contingency case so that no fee would be due if the case were lost. Although the amount of benefits obtained was found to be $544.88, the time expended was 39.1 hours, so the deputy concluded that "the primary factor to be considered is the time involved." He then found that a fee is justified in excess of the fee schedule contained in section 440.34, Florida Statutes (1983), and awarded $1,500.

On appeal claimant contends that the amount of fee awarded is insufficient and not supported by the record and complains that the deputy should have used $1000 as the value of benefits obtained. Claimant also argues that the amount of the fee should be determined in accordance with the factors discussed in Florida Patients' Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), which focuses on the time expended as the beginning point.

Section 440.34 governs the award of a reasonable fee to be received by claimant's attorney, whether paid by the carrier or by the claimant. Subsection 440.34(1) provides that any attorney's fee approved by the deputy commissioner shall be equal to a certain percentage "of the amount of the benefits secured," but further states:

However, the deputy commissioner shall consider the following factors in each case and may increase or decrease the attorney's fee if, in his judgment, the circumstances of the particular case warrant such action:

(a) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.

(b) The likelihood, if apparent to the claimant, that the acceptance of the particular employment will preclude employment of the lawyer by others or cause antagonisms with other clients.

(c) The fee customarily charged in the locality for similar legal services.

(d) The amount involved in the controversy and the benefits resulting to the claimant.

(e) The time limitation imposed by the claimant or the circumstances.

(f) The nature and length of the professional relationship with the claimant.

(g) The experience, reputation, and ability of the lawyer or lawyers performing services.

(h) The contingency or certainty of a fee.

Subsections 440.34(1) and (6) prohibit an attorney from receiving a fee in any amount not approved by the deputy commissioner or the court. Thus, the deputy is obligated to determine the reasonableness of the fee to be received by the claimant's attorney for his services.

In the instant case, the deputy reviewed each statutory factor and, among other things, accepted the 39 hours as reasonable, recognized that the questions involved were unusual, acknowledged the exceptional reputation and legal ability of claimant's attorney, and found that the range of hourly rates paid for similar services was $75 to $150 per hour. Yet, for reasons not apparent on the face of the order, the deputy awarded a fee which amounts to...