Jacobson, More Ripples on the Pond?

Tuesday, June 18, 2013 | 0

More ripples on the surface in Tallahassee, which will come ashore across Florida. Sometimes the effects of a pebble dropped there will grow to a tidal wave as it moves outward. Other times, the effect of a boulder dropped there will create large ripples which, however, dissipate or diminish before reaching distant shores. It is sometimes difficult to predict which issues are huge and which just seem huge. It may also be difficult to judge the results of the impact just from an analysis of the ripples on the surface.

Judges Van Nortwick, Wolf, and Wetherell concluded in a decision released June 6 that Sections 440.34(3) and 440.105(3)(c) are unconstitutional, as applied in Jacobson v. Southeast Personnel Leasing, Case 1D12-1103, June 5, 2013. The appellant was represented by Michael Winer of Tampa and Paul Hawkes, former 1st District Court of Appeal chief judge, of Tallahassee. The Florida Workers' Advocates filed amicus curiae supporting the appellant.

The court noted that Section 440.105, by its plain language "does not limit its application only to attorneys representing claimants, it has long been interpreted as such in practice." Altstatt v. Fla. Dep’t of Agric., 1 So.3d 1285, 1286 (Fla. 1st DCA 2009). This section criminalizes the receipt of attorney's fees for representation in workers' compensation cases, unless those fees are approved by the Office of Judges of Compensation Claims. A significant amount of judicial effort is invested daily in the consideration and order processes associated with motions for such approval of fees across the state.

Section 440.34 limits the OJCC to approval of fees. The Judge "shall consider only those benefits secured by the attorney.” Kauffman v. Community Inclusions, Inc., 57 So.3d 919 (Fla. 1st DCA 2011).

These two were brought into a different focus, according to the Court, by the lens of prevailing party costs. Traditionally, an injured worker could collect taxable costs if she or he prevailed in a claim against the employer/carrier. in 2003, the Legislature expanded this liability, affording the Employer/Carrier the same right to seek costs from the injured worker, in the event the E/C prevailed. The Court expanded the scope of costs, beyond those defined by the Uniform State Guidelines, in Morris v. Dollar Tree Store, 869 So.2d 704 (Fla. 1st DCA 2004), rendering the definition of "costs" less predictable and encouraging the litigation of what is or is not a cost in particular cases.

In Jacobson, the injured worker found himself on the receiving side of a motion to tax prevailing party costs. His attorney, having sought the benefits and litigated the case, withdrew from the case, after losing at trial, noting “it is no longer economically viable for the undersigned to continue representation of the claimant in this case.” Claimant sought to hire Mr. Winer to resist this claim for costs.

The 1st District concluded that Sections 440.34(3) and 440.105(3)(c) are unconstitutional, as applied in this case. The Court relied upon the First Amendment to the United States Constitution, and the right thereunder to "'to peaceably assemble' and to enjoy freedom of speech," and to "petition the government for a redress of grievances." The court concluded that "the speech at issue here is claimant’s own words – given voice through his attorney – spoken or written before the court in his defense during litigation," and that the claimant's rights "are implicated because the right to hire an attorney stems from these three enumerated rights."

The court held therefore that "the prohibition on claimant-paid attorney’s fees in Sections 440.105(3)(c) and 440.34 are unconstitutional, and thus unenforceable, as they apply to cases where the fee is for legal services performed in defense against an E/C’s motion to tax costs."

Judge Wetherell wrote a concurring opinion to clarify that his interpretation and analysis is limited to the application of these statutory sections to this particular factual setting, unconstitutional as applied here, (emphasis in original), and that "this does not mean that these statutes are unconstitutional in other circumstances."

Certainly, there is significant volume of litigation over taxable costs in Florida. Less certain is how many injured workers, like Jacobson, can find the resources to pay an attorney $175 per hour (as was agreed in this case) to defend them against claims for such costs.

The stone is in the pond, whether a pebble or boulder, how far the ripples travel and their effect on the distant shores remains to be seen.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column was reprinted with his permission from his Florida Workers' Compensation Adjudication blog.