Is Carrier's Statutory Right to Tax Costs Against Claimants Toothless?

Thursday, June 10, 2010 | 0

By Michael Rabinowitz
Banker Lopez Gassler

I’ve recently had this discussion with a few claimant attorneys and their position regarding Section 440.34(3), which gives the “prevailing party” the right to seek taxation of costs against the opposing party. As many fans of this blog know, the Florida 1st District Court of Appeals ruled  that such a provision does apply to employer/carriers and that even a mere dismissal of a PFB renders an E/C the “prevailing party.”

Now these claimant attorneys are not disputing these rulings. They are contending that the section is “toothless” in terms of an employer/carrier trying to enforce a judge’s order to tax costs against a claimant.

At the root of this “toothless” argument is s. 440.24(1) which gives claimants the power to enforce any judge of compensation claims order in circuit court under the “rule nisi” doctrine. Since judges of compensation claims are technically administrative law judges, they require the circuit civil courts to enforce their orders. The rule nisi allows claimants to seek enforcement of the JCC’s compensation orders through circuit civil courts who have the power to enforce through contempt orders and ultimately the sherrif’s office. 

For some claims professionals, being at the receiving end of a rule nisi can be scary because it means the claimant alleges you didn’t follow a judge’s order awarding benefits and you now owe additional attorney’s fees.

The problem for E/C’s is that Section 440.24(1) does not have any language allowing for the reverse to be true. In other words, the plain meaning of the statute does not allow for E/C’s themselves to file a rule nisi in circuit civil court to enforce their own motions to tax costs. This lack of language–what some claimant attorneys argue–prevents an E/C from ever enforcing s. 440.34(3).

Now, I am not going to predict what a judge or the 1st DCA would do with this argument. It would seem fair to say that a judge would not be too happy that her orders are “toothless.” Also, it would seem fair to say that the 1st DCA after issuing FIVE rulings over the last two years re-enforcing the E/C’s right to tax costs would reverse course and rule that the very provision of chapter 440 that they have upheld is “toothless.”

After all, the Florida Supreme Court held in Emma Murray that “a statute will not be construed in such a way that it renders meaningless or absurd any other statutory provision.”  By following the argument of these claimant attorneys, the 1st DCA would be rendering 440.34(3) meaningless.

But, this argument need not go all the way to the 1st DCA.  Section 440.24(4) provides an ample solution to the lack of E/C language in s. 440.24(1).   Section 440.24(4) says the following:

In any case wherein the employee fails to comply with any order of a judge of compensation claims within 10 days after such order becomes final, the judge of compensation claims may dismiss the claim or suspend payments due under said claim until the employee complies with such order.

What this means is that an order to tax costs against a claimant can be enforced, albeit in a procedural way. Until claimant complies with the order–that is, pay back the E/C its taxable costs–the JCC can dismiss any pending claim or suspend benefits. There is even case law to back this up. The statute may not give the E/C a specific right to collect taxable costs, but it does give the JCC powers to freeze the claimant out of the courthouse.

So, if a claimant refuses to pay an order to tax costs, the E/C would be in line with the law to move the JCC to dismiss any new petitions for benefits and even suspension of indemnity or medical benefits until claimant complies with the order. Considering this would expose claimants to the statute of limitations and bar any future claims it would behoove claimants follow the JCC’s orders and give an E/C’s order to tax costs some “teeth.”

Michael Rabinowitz is an attorney for Banker Lopez Gassler in Tampa. This column was reprinted with his permission from the firm's blog, http://workerscompblog.wordpress.com/