Tampa Aluminum Products Co. v. Watts, s. 40054

• Decision Date: 19 July 1961
• Docket Number: Nos. 40054,40055,s. 40054
• Citation: 132 So.2d 414
• Parties: TAMPA ALUMINUM PRODUCTS COMPANY, Inc., and the Dixie Fire and Casualty Company, Petitioners, v. James R. WATTS and the Florida Industrial Commission, Respondents. TAMPA ALUMINUM PRODUCTS COMPANY, Inc., and the Dixie Fire and Casualty Company, Petitioners, v. Joseph M. DIBBS and the Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 414

132 So.2d 414

TAMPA ALUMINUM PRODUCTS COMPANY, Inc., and the Dixie Fire and Casualty Company, Petitioners, v. James R. WATTS and the Florida Industrial Commission, Respondents.

TAMPA ALUMINUM PRODUCTS COMPANY, Inc., and the Dixie Fire and Casualty Company, Petitioners, v. Joseph M. DIBBS and the Florida Industrial Commission, Respondents.

Nos. 40054, 40055.

Supreme Court of Florida.

July 19, 1961.

Rehearing Denied Sept. 19, 1961.

E. O. Palermo and Calvin A. Pope, of Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for petitioners.

Morrice S. Uman, Tampa, Burnis T. Coleman and Paul E. Speh, Tallahassee, for respondents.

PER CURIAM.

This is a appeal by certiorari in a workmen's compensation case. We have carefully examined the record and find that the order of the deputy commissioner as approved by the full Florida Industrial Commission is supported by competent substantial evidence except as to the award of attorney's fees, with which exception certiorari is denied.

As to attorney's fees petitioners contend that the award in these cases, $600 as to James R. Watts and $4,400 as to Joseph M. Dibbs, were excessive and that the deputy commissioner not only abused his discretion but erred as a matter of law in awarding attorney's fees in such amounts.

The question of awarding attorney's fees is at best and at all times a delicate question to deal with, but in a country like ours we can think of no business that is more deeply affected with a public interest than the practice of law. This is particularly true in litigating workmen's compensation cases, a comparatively new field of law, in many respects different from other fields, governed by different rules and so rigidly regulated by statutes, one of which requires that all doubts be construed in the interest of the claimant.

It is accordingly our view that when a charge of excessive or unlawful attorney's fees is alleged and plausibly advocated, it becomes the duty of this court to investigate the charges and if the fee is shown to be unreasonable or excessive, designate such a fee as would be reasonable or return the case to the deputy commissioner for further consideration. We think § 59.34, Florida Statutes, F.S.A., contemplates this. It provides that the appellate court, 'on an appeal, shall examine the record, and reverse or affirm the judgment, sentence or decree of the court below; give such judgment, sentence, or decree as the court below should have given; or otherwise as to it may appear according to law.' It would hardly be possible to give this court more power or a broader discretion to modify or set aside judgments of lower courts or tribunals to make them square with the law of the case or justice of the cause.

By his order dated July 20, 1960, the deputy commissioner found that pursuant to § 440.13, Florida Statutes, F.S.A., Joseph M. Dibbs was entitled to remedial treatment, care and attention and to compensation for temporary total disability at the maximum rate from January 9, 1960, until he reaches maximum medical improvement and directed that said benefits be paid by the carrier. Jurisdiction was retained for the purpose of deciding when the claimant reached maximum medical improvement and for such other proceedings as might be appropriate, including a hearing set for August 4, 1960, to take evidence and determine a reasonable fee to be awarded counsel for Dibbs for his services.

At the hearing August 4, 1960, the claims for attorney's fees on the part of Dibbs and Watts were consolidated and heard on the same record because both were employed by the same employer, had the same carrier and much of the evidence was applicable to both claims. We think the deputy commissioner correctly found that he had jurisdiction in both the Dibbs and Watts cases. He reviewed Florida Silica Sand Co. v. Parker, Fla.1960, 118 So.2d 2; Port Everglades Terminal Co. v. Canty, Fla.1960, 120 So.2d 596, and other cases bearing on the question of reasonable attorney's fee in workmen's compensation cases.

At great pains the deputy commissioner discussed the number of claims that were lodged with the Florida Industrial Commission during the year 1959-190,000 claims. He further pointed out that 11,709 of these claims were referred to deputy commissioners and that of these 6,615 were reviewed, adjusted or settled in conference; in 4,803 of them awards were made, and in 291 claims testimony was taken and transcribed.

Three experienced attorneys were produced and testified to the effect that they had examined the record and judgments in the Watts and Dibbs cases. The first of said attorneys thought that a fee of $6,500 to $6,750 would be reasonable for the two cases. The second attorney thought that a fee of $5,750 to $6,000 should be allowed in the two cases. The third attorney thought that a fee of approximately $6,000 should be allowed in both cases.

An attorney produced by the employer and carrier testified that he had devoted the last 22 years to handling workmen's compensation cases and was familiar with the fees paid in such cases. He thought that a reasonable fee in the Watts case would be $250 to $275, and that a reasonable fee in the Dibbs case would be $1,750 to $2,000. It was further brought out that the minimum fee schedule of the Florida Industrial Commission in workmen's compensation cases was $1,870, plus $270; that the minimum fee schedule of The Florida Bar Committee was $3,200, plus $360. The deputy commissioner averaged these figures and gave consideration to all of them but did not rely on them to reach a quotient decision. Other evidence was taken and considered but from recitations herein it appears that The Florida Bar Committee scale influenced the deputy commissioner more than any other factor in making up his judgment as to the award of attorney's fees in the Watts and Dibbs cases.

This court is sensitive to the fact that an attorney is entitled to adequate compensation for his services. It is also sensitive to the fact that in workmen's compensation cases the attorney's compensation must be determined with reference to the rights and equities of the employer, the insurance carrier and the claimant. We are advised by the Florida Industrial Commission that there are 212 insurance carriers licensed to write compensation insurance in Florida. As of December 30, 1960, there were 2,672 self insurers in the state. The self insurers are members of other coverage groups such as the Florida Automobile Dealers Association the Hotel Association and many others, some of which are serviced by special service organizations, like Corporate...