Wick Roofing Co. v. Curtis

Decision Date03 April 1959
Docket NumberNo. 29622,29622
PartiesWICK ROOFING COMPANY, and Michigan Mutual Liability Company, Petitioners, v. Glenn D. CURTIS and the Florida Industrial Commission, Respondents.
CourtFlorida Supreme Court

Dixon, DeJarnette, Bradford & Williams and Paul A. Carlson, Miami, for petitioners.

Cosgrove & Rose, Miami, and Paul E. Speh, Tallahassee, for respondents.

THORNAL, Justice.

By petition for certiorari the petitioners, who were appellees in the District Court of Appeal, Third District, seek review of a decision of that court which allegedly conflicts with a prior decision of this court on the same point of law.

We are called upon to determine whether an appellate court is authorized to allow a fee for a claimant's attorney in a Workmen's Compensation case when the claimant takes an unsuccessful appeal.

In the instant case the employee Curtis claimed total permanent disability as a result of an industrial accident. The deputy commissioner determined that he had suffered a twenty per cent permanent partial disability. The ruling of the deputy was affirmed by the full Commission. Thereafter the employee sought review by certiorari in the District Court of Appeal. That court denied certiorari. 106 So.2d 641. From this summary of the proceeding it is clear that the employee did not receive all of the benefits which he claimed before the deputy commissioner. His effort to change the ruling of the deputy by his appeals to the full Commission and to the District Court of Appeal were unsuccessful. In the Court of Appeal the employee requested an allowance of fees for his attorneys who had represented him in the unsuccessful appeal. That court granted the request with the following order, to wit:

'The attorneys for petitioner, Cosgrove & Rose, have filed a petition for an order allowing and fixing attorneys' fee for the services of the attorneys for petitioner rendered in the cause in this Court and, upon consideration thereof, it is ordered that said petition be and the same is hereby granted, and the attorneys of record for petitioner, Cosgrove & Rose, be and they are hereby allowed $250.00 as compensation for the services of said attorneys in the cause in this Court, said sum to be paid to Cosgrove & Rose, the attorneys of record for petitioner, as provided by law within thirty (30) days from this date.'

Review of the last quoted order is now sought.

Our jurisdiction is invoked with the contention that the quoted order conflicts with the prior decision of this court in Virginian, Inc. v. Ponder, Fla.1954, 72 So.2d 781. We noted potential jurisdiction, issued the writ, and the matter has been heard on the merits.

In Virginian, Inc. v. Ponder, supra, the employee had been unsuccessful before the deputy commissioner and before the full Commission. His appeal to the Circuit Court, as was then the practice, resulted in an order of that court reversing the Commission and returning the matter to the deputy for a further trial on the merits. Sitting as an appellate court in the Workmen's Compensation matter, the Circuit Judge allowed the claimant an attorney's fee for all services rendered by his attorney up to that point. This order allowing the fee was reversed by this court with the observation that an award of compensation is a prerequisite to an award of attorneys' fees. It was held that inasmuch as no compensation had yet been awarded to the employee, the Circuit Court committed error in undertaking to award an attorney's fee. In other words, it was held that the Circuit Court, sitting as an appellate court, was without authority to award an attorney's fee to the claimant in advance of the successful adjudication of an award.

Making reference to Virginian, Inc. v. Ponder, supra, the petitioners here contend that inasmuch as the claimant was unsuccessful in his appeal to the District Court he should not be allowed a fee for his attorneys. Their position simply is that under the statute, which we shall quote, an allowance of an attorney's fee should accompany only an award to the claimant. Stated conversely, if the claimant appeals and fails, the petitioners assert that he is not entitled to the allowance of an attorney's fee.

Contrary to the position of the petitioners, the respondents take the position that the Florida Workmen's Compensation Act endows an appellate court with a discretion in the matter of the allowance or the increase of a fee for the attorneys for the claimant when a Workmen's Compensation matter is heard on appeal. They advance the point that the statute does not make the appellate fee contingent on success at the appellate level.

The statute involved is Section 440.34(1), Florida Statutes, F.S.A., which reads as follows:

'(1) If the employer or carrier shall file notice of controversy as provided in § 440.20 of this chapter, or shall decline to pay a claim on or before the twenty-first day after they have notice of same, or shall otherwise resist unsuccessfully the payment of compensation, and the injured person shall have employed an attorney at law in the successful prosecution of his claim, there shall, in addition to the award for compensation be awarded reasonable attorneys fee, to be approved by the...

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15 cases
  • Byrd v. Richardson-Greenshields Securities, Inc.
    • United States
    • Florida Supreme Court
    • October 26, 1989
    ...of the statutory language is in keeping with the liberal construction accorded the workers' compensation statute, see Wick Roofing Co. v. Curtis, 110 So.2d 385 (Fla.1959); C.F. Wheeler Co. v. Pullins, 152 Fla. 96, 11 So.2d 303 (1942), and has affected both the terms "accident" and "arising ......
  • Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Jones, 31146
    • United States
    • Florida Supreme Court
    • November 15, 1961
    ...Miami Roofing & Sheet Metal Company, Fla.1955, 79 So.2d 785; Virginian, Inc. v. Ponder, Fla.1954, 72 So.2d 781, and Wick Roofing Company v. Curtis, Fla.1959, 110 So.2d 385, to support this We have examined these cases and we do not think any of them rules the case at bar. The main question ......
  • Sherman v. Peoples Water & Gas Co., 31345
    • United States
    • Florida Supreme Court
    • March 7, 1962
    ...in favor of the claimant and the governing act construed liberally to effect the purpose for which it was enacted. Wick Roofing Company v. Curtis, Fla.1959, 110 So.2d 385; Dennis v. Brown, Fla.1957, 93 So.2d 584; Naranja Rock Co. v. Dawal Farms, Fla.1954, 74 So.2d We have examined Padrick C......
  • Williamson v. Bush and LaFoe
    • United States
    • Florida Supreme Court
    • May 8, 1974
    ...Law liberally in order to accomplish the beneficent purposes and objectives implicit in legislation of this type.' Wick Roofing Co. v. Curtis, 110 So.2d 385, 387 (Fla.1959); Sharer v. Hotel Corp. of America, Supra. The schedule in F.S. § 440.15, F.S.A., should not be applied with remorseles......
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