Veterans Septic Tank Service v. Wallace, AT-159

Decision Date13 February 1984
Docket NumberNo. AT-159,AT-159
Citation445 So.2d 389
PartiesVETERANS SEPTIC TANK SERVICE, and Aetna Insurance Company, Appellants, v. Carl WALLACE, Appellee.
CourtFlorida District Court of Appeals

James M. Hess of Driscoll, Langston & Kane, Orlando, for appellants.

R.W. Simmermon, Orlando, for appellee.

SHIVERS, Judge.

The employer/carrier appeal the order of the deputy commissioner awarding claimant wage loss benefits, costs, and directing the employer/carrier to pay claimant's attorney a reasonable attorney's fee. We affirm as to the issues raised on appeal with respect to the deputy's findings that claimant made a good faith and adequate work search, that claimant did not voluntarily limit his employment, and that costs of the proceedings should be taxed against the employer/carrier, since we find competent, substantial evidence in the record to support these findings. We reverse and remand with directions as to the award of attorney's fees and the decretal portion of the order awarding claimant wage loss benefits for the period August 1, 1982 to April 1, 1983 and continuing. We discuss only these latter two points.

Neither in the application for hearing nor at the hearing itself did claimant's attorney assert that the carrier's bad faith handling of the claim was the basis for his claim for attorney's fees. Although this court has interpreted the language contained in section 440.34(3)(b), Florida Statutes (1980), as not requiring the deputy to conduct a completely separate hearing on the question of entitlement to attorney's fees on the basis of bad faith, but only that the question of bad faith be specifically litigated as a separate issue with factual evidence presented going directly to that issue, Embry-Riddle Aeronautical U. v. Vestal, 399 So.2d 1033, 1035 (Fla. 1st DCA 1981), this court has also held that the deputy may not infer from general testimony that bad faith exists, see, e.g., Closet Maid Corp. v. Wilson, 429 So.2d 419, 421 (Fla. 1st DCA 1983); Jess Parrish Memorial Hospital v. Layer, 420 So.2d 917 (Fla. 1st DCA 1982). Here, the record is devoid of any forthright assertion of bad faith, or any meaningful litigation on that subject at the hearing before the deputy. Accordingly, the deputy's order as to attorney's fees is reversed and remanded with directions to the deputy to conduct a separate hearing, necessitated by the failure to meaningfully determine entitlement to attorney's fees at the regular hearing, on the...

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8 cases
  • Certified Grocers v. Conerty, 87-707
    • United States
    • Court of Appeal of Florida (US)
    • 22 Julio 1988
    ...loss benefits does not comport with the statutory characterization of wage loss as a monthly benefit. See Veteran's Septic Tank Service v. Wallace, 445 So.2d 389 (Fla. 1st DCA 1984). The order is accordingly construed as one continuing only so long as such benefits are proper under the The ......
  • Haas v. Seekell, 87-875
    • United States
    • Court of Appeal of Florida (US)
    • 17 Febrero 1989
    ...So.2d 304 (Fla. 1st DCA 1987); Rivers v. SCA Services of Florida, Inc., 465 So.2d 634 (Fla. 1st DCA 1985); Veterans Septic Tank Service v. Wallace, 445 So.2d 389 (Fla. 1st DCA 1984). In the present case, entitlement to attorney's fees based on bad faith was not specifically litigated as a s......
  • Workman v. McDonnell Douglas Corp., 90-3607
    • United States
    • Court of Appeal of Florida (US)
    • 16 Diciembre 1991
    ...date of the hearing on a continuing basis. Wiley Jackson Co. v. Webster, 522 So.2d 987 (Fla. 1st DCA 1988); Veterans Septic Tank Service v. Wallace, 445 So.2d 389 (Fla. 1st DCA 1984). Similarly, it would do violence to the month-to-month nature of wage-loss to deny such benefits on a contin......
  • Wiley Jackson Co. v. Webster, BR-387
    • United States
    • Court of Appeal of Florida (US)
    • 25 Marzo 1988
    ...paid "to the date of hearing and continuing" is improper. Deltona Corporation, 418 So.2d at 1276. See also Veterans Septic Tank Service v. Wallace, 445 So.2d 389 (Fla. 1st DCA 1984) (holding that the language "and continuing" in the decretal portion of the order awarding claimant wage-loss ......
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