Steinbrecher v. Better Const. Co.

• Decision Date: 06 September 1991
• Docket Number: No. 90-2905,90-2905
• Citation: 587 So.2d 492
• Parties: Steven STEINBRECHER, Appellant, v. BETTER CONSTRUCTION CO., and National Union Fire Insurance, Appellees. 587 So.2d 492, 16 Fla. L. Week. D2332
• Court: Florida District Court of Appeals

Page 492

587 So.2d 492

Steven STEINBRECHER, Appellant, v. BETTER CONSTRUCTION CO., and National Union Fire Insurance Appellees.

No. 90-2905.

587 So.2d 492, 16 Fla. L. Week. D2332

District Court of Appeal of Florida First District.

Sept. 6, 1991.

Rehearing Denied Nov. 18, 1991.

Mark L. Zientz of Williams & Zientz, Miami, for appellant.

Edward W. Levine of Marlow, Shofi, Connell, Valerius, Abrams, Lowe & Adler, Miami, for appellees.

JOANOS, Chief Judge.

Claimant Steven Steinbrecher appeals a workers' compensation order denying his claim for penalties pursuant to section 440.20, Florida Statutes (1983). The issue for review is the propriety of the denial of a twenty percent penalty pursuant to section 440.20(8), Florida Statutes (1983), for failure to make timely payment in accordance with a workers' compensation order. We reverse.

The record reflects that on July 12, 1989, the judge of compensation claims entered an order approving a lump sum settlement. In addition to the lump sum amount, the employer/carrier agreed to pay wage loss benefits from the time of their suspension in March 1989 to date of approval of the settlement. Payment of the lump sum was made by checks dated August 15, 1989, addressed to the attorney for the employer/carrier/servicing agent, who received them on August 17, 1989. The checks were then hand delivered to claimant's attorney on August 18, 1989. The wage loss benefits were not paid until October 17, 1989.

On August 24, 1989, claim was made for the statutory twenty percent penalties and interest on the late payment of the order of July 12, 1989, and for additional penalties, interest, costs, and attorney's fees. See Sec. 440.20(8) and (9), Fla.Stat. (1989). Employer/carrier/servicing agent defended on grounds of excusable neglect and no deliberate intention to avoid timely payment. At the hearing, the depositions submitted and the testimony of the office manager for the servicing agent were to the effect that the late payment was inadvertent, and was caused by a shortage of staff due to employee terminations, vacation schedules, and a general backlog of work in the office. Evidence was also adduced that the adjuster who worked on the file knew that the rules of the Department of Labor and Employment Security require compensation payments to be sent directly to the claimant, unless there is an order to the contrary by the judge. Despite this knowledge of its licensed adjuster, in this instance, the servicing agent sent payment to the carrier's attorney, pursuant to a procedure established by the servicing agent's home office.

The judge's initial order denied the claim for penalties and interest in its entirety. After claimant filed a motion to vacate and for rehearing, a second order was issued, vacating the prior order. The new order recognized that checks issued by the carrier in October 1989 in the amounts of $5,760 and $1,322 represented payment of the wage loss portion of the settlement order, and included the statutory twenty percent penalties and interest for late payment of wage loss. The order awarded interest on the lump sum payment, and an attorney's fee for the penalties and interest obtained subsequent to the date the claim for benefits was filed. However, the amended order again contained a finding that late payment of the lump sum settlement was due to inadvertence brought on by a series of misfortunes, and that the servicing agent was shorthanded due to resignations and vacations.

The statute applicable, section 440.20(8), Florida Statutes, provides in pertinent part:

If any compensation, payable under the terms of an award, is not paid within 30 days after it becomes due, there shall be added to such unpaid compensation an amount equal to 20 percent thereof, which shall be paid at the same time as, but in addition to, such compensation, ... (Emphasis supplied.)

It is well settled that where the language of a statute is clear and unambiguous, courts may not resort to rules of statutory construction. Rather, the statute must be given its plain and ordinary meaning. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). Further, courts are "without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications." American Bankers Life Assurance Co. of Florida v Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968). It is also an accepted principle that the use of the term "shall" in a statute normally has a mandatory connotation. S.R. v. State, 346 So.2d 1018 (Fla.1977); White v. Means, 280 So.2d 20 (Fla. 1st DCA 1973). Moreover, where a...