W.A. Doss & Sons, Inc. v. Barbato
| Decision Date | 22 April 1986 |
| Docket Number | No. BG-371,BG-371 |
| Citation | 487 So.2d 377,11 Fla. L. Weekly 935 |
| Court | Florida District Court of Appeals |
| Parties | 11 Fla. L. Weekly 935 W.A. DOSS & SONS, INC. and Iowa National Mutual Insurance Company, Appellants, v. Shirley Ann BARBATO, Appellee. |
Robert L. Dietz, of Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellants.
J.W. Chalkley, III, of Chalkley & Sims, Ocala, for appellee.
The employer and carrier appeal from an order of the Deputy Commissioner requiring the employer/carrier to pay an attorney's fee to claimant in the amount of $1,950 and to pay expert witness fees for the two attorneys who testified on the issue of attorney's fees. We reverse both awards.
We reverse the award of the attorney's fee because the deputy, in his order, failed to expressly consider the guidelines and factors set forth in Section 440.34(1)(a)-(h), Florida Statutes (1983) and Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968). We therefore reverse as to the amount of the fee awarded and remand for reconsideration in light of the factors required under the above authorities.
We also reverse the deputy's award of expert witness fees to the two attorneys who testified on behalf of the claimant's attorney. The Florida Supreme Court has clearly established that attorneys who testify on the issue of attorney's fees in worker's compensation cases are not entitled to expert witness fees under Section 440.31, Florida Statutes (1983). 1 Robert & Co. Associates v. Zabawczuk, 200 So.2d 802 (Fla.1967).
The appellee has asserted that the Florida Supreme Court's recent ruling in Travieso v. Travieso, 474 So.2d 1184 (Fla.1985), effectively overruled its decision in Zabawczuk, supra. While the court held in Travieso that an attorney who testifies as an expert on attorney's fees shall be allowed an expert witness fee under Section 92.231, Florida Statutes (1983) 2, the majority distinguished its prior decision in Zabawczuk as applying strictly to worker's compensation cases. We thus find Zabawczuk controlling in this case and reverse the deputy's award of expert witness fees.
We certify the following question of great public importance:
WHETHER SECTION 440.31, FLORIDA STATUTES (1983), AUTHORIZES THE AWARD OF EXPERT WITNESS FEES TO ATTORNEYS WHO TESTIFY ON THE ISSUE OF ATTORNEY'S FEES IN WORKER'S COMPENSATION CASES?
REVERSED AND REMANDED.
1 Section 440.31, Florida Statutes (1983) provides as follows:
440.31 Witness fees.--Each witness who appears in obedience to a subpoena shall be entitled to the same fees as witnesses in a civil action in the circuit court; however, any expert witness, as defined in Rule 1.390(a) of the Rules of Civil Procedure, who shall have testified in any proceeding under this chapter shall be allowed a...
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...amount of the fee. Likewise, this case is not the proper vehicle to recede from or erode our recent holding in W.A. Doss & Sons, Inc. v. Barbato, 487 So.2d 377 (Fla. 1st DCA 1986) (holding, in accordance with Robert & Company Associates v. Zabawczuk, 200 So.2d 802 (Fla.1967), that expert wi......
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