Stolzer v. Magic Tilt Trailer, Inc.

Decision Date09 July 2004
Docket NumberNo. 1D03-2747.,1D03-2747.
Citation878 So.2d 437
PartiesDean STOLZER, Appellant, v. MAGIC TILT TRAILER, INC. and United Self Insured Services, Appellees.
CourtFlorida District Court of Appeals

William H. McKnight, Tampa, for Appellant.

Elizabeth P. Lynch and David K. Beach of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellees.

PER CURIAM.

Dean Stolzer, claimant below, appeals a final order of the Judge of Compensation Claims determining that section 440.34(3), Florida Statutes (2002)1 retroactively applied to the petition for permanent total disability benefits filed as a result of his compensable motor vehicle accident on April 11, 2000, and therefore an award of attorney's fees was precluded. We reverse.

The parties agree that this amendment to the attorney's fee statute, which allows the employer/carrier 30 days rather than 14 days within which to provide benefits before being responsible for payment of attorney's fees, is a substantive change to the statute. Accordingly, the established precedent from the Florida Supreme Court and this court is clear that the amendment cannot be retroactively applied. Sullivan v. Mayo, 121 So.2d 424, 428 (Fla.1960); Phillips v. City of West Palm Beach, 70 So.2d 345, 346 (Fla.1953); Vilches v. City of Dunedin, 738 So.2d 990, 991 (Fla. 1st DCA 1999); Baptist Manor Nursing Home v. Madison, 658 So.2d 1228, 1230 (Fla. 1st DCA 1995); City of Crestview v. Howard, 657 So.2d 73, 74 (Fla. 1st DCA 1995); Kraft Dairy Group v. Sorge, 634 So.2d 720, 721 (Fla. 1st DCA 1994); Mueller v. Searcy, 418 So.2d 397, 399 (Fla. 1st DCA 1982); Ship Shape v. Taylor, 397 So.2d 1199, 1201 (Fla. 1st DCA 1981); see also Ace Disposal v. Holley, 668 So.2d 645, 646 (Fla. 1st DCA 1996).

REVERSED.

KAHN, WEBSTER and VAN NORTWICK, JJ., concur.

1. That statute provides in pertinent part:

Regardless of the date benefits were initially requested, attorney's fees shall not attach under this subsection until 30 days after the carrier or employer, if self-insured, receives the petition.

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11 cases
  • Walker v. Cash Register Auto Ins.
    • United States
    • Florida District Court of Appeals
    • December 22, 2006
    ...The withdrawal or amendment of a claim, allegation or defense could substantively alter a case. Compare, Stolzer v. Magic Tilt Trailer, Inc., 878 So.2d 437 (Fla. 1st DCA 2004)(holding that statutory amendment to Chapter 440, Florida Statutes, that allowed employer/carrier 30 days, rather th......
  • Menendez v. Progressive Express Insurance Co., Inc., No. SC08-789 (Fla. 2/4/2010)
    • United States
    • Florida Supreme Court
    • February 4, 2010
    ...in Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So. 2d 66 (Fla. 1st DCA 2006), and Stolzer v. Magic Tilt Trailer, Inc., 878 So. 2d 437 (Fla. 1st DCA 2004). Because we conclude that the 2001 amendment creating the statutory presuit notice provisions constitutes a substant......
  • The Bionetics Corp.. v. Kenniasty
    • United States
    • Florida Supreme Court
    • September 6, 2011
    ...limitations on the right to recover attorney's fees are substantive in nature. See, id. at 879 (citing Stolzer v. Magic Tilt Trailer, Inc., 878 So.2d 437, 438 (Fla. 1st DCA 2004) (holding that a statutory amendment allowing an employer or carrier thirty rather than fourteen days to provide ......
  • McCarty v. UNEMPLOYMENT APPEALS COM'N
    • United States
    • Florida District Court of Appeals
    • July 9, 2004
    ... ... Augustine Trains, Inc., Appellees ... No. 1D03-3116 ... District Court of ... ...
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