Emma Murray Postmortem

Tuesday, October 28, 2008 | 0

By Michael Rabinowitz

If you think that judges sit in their legal ivory towers, above the political fray, you are blissfully naive. Case in point: one day after the Florida Supreme Court rolled back the Claimant attorney fee cap in workers' comp, the 1st District Court of Appeals (the lower appellate court with sole jurisdiction on all W/C appeals) releases a new opinion reinforcing the employer/carrier’s right to tax costs onto claimant.

From this decision, its apparent the 1st DCA knew what the outcome of Emma Murray was and were not exactly keen on it.

Costco v. Ruby Utell is a short opinion that reverses a judge of compensation claims' decision denying the employer/carrier its motion to tax costs against claimant. Just like their seminal decision in Palm Beach Co. v. Ferrer, claimant withdrew his petitions for benefits just before the final hearing and the 1st DCA deemed this as anointing the E/C as the “prevailing party” for purposes under section 440.34(3).  Under the “plain meaning” of 440.34(3), the 1stt DCA found claimant liable to the E/C for their litigation costs.

In Ferrer, claimant withdrew his petitions on the eve of trial.  There is no indication here in Utell of when claimant withdrew her petitions.  I tried to find the original order on DOAH’s website, but to no avail.  The big question would be how close to the final hearing does the claimant, by withdrawing her petitions, risk declaring the E/C a prevailing party?  We know its one day before but what about a week?  Or a month?  That is still uncertain.

But despite that uncertainty, we still have an ideological divide between two appellate courts.  The Supreme Court believes that a W/C judge should have expanded powers in determining fees and settlements. While the 1st DCA wants to limit litigation through taxing claimants for filing unnecessary petitions.

The Supreme's rule over all, but it will be interesting to see how the First DCA interprets W/C through the lense of Emma Murray.  From what I can tell the day after, the 1st DCA is none too happy about the Murray decision.

Michael Rabinowitz is an an attorney at Fowler White Boggs Banker in Tampa, Fla. This column was reprinted with his permission from his blog, http://workerscompblog.wordpress.com/