SOL Doesn't Run if Attorney Fee Claim Still Open

Tuesday, February 14, 2012 | 0

Wow. This one is a doozy.

For years, the assumption about the statute of limitations (SOL) was “form over substance.”  A claimant has two years from the date of accident and then one year from the last date of provided benefits to file a petition for benefits. If he fails to comply within those time periods, he is barred forever from bringing a claim against the employer/carrier (E/C). This was one of the first blog entries I wrote. You can read about the basics of SOL here. (For a video reference, click here.)

If you read Section 440.19 (the SOL statute) not once does it mention that the SOL tolls over a claim for attorney’s fees. The whole premise is based on giving the E/C and claimant a ticking clock from the last date of benefits. Attorney's fees have nothing to do with the SOL.

Except now ...

In Longley v. Miami-Dade County School Board, the claimant appealed a decision from the trial court where the judge found that the SOL barred his petition. The facts are as follows: The claimant filed a petition for benefits for a return visit to his authorized doctor. The E/C complied quickly and set up an appointment, which the claimant attends.

The parties then send a letter to the state mediator that the issues were resolved “except for attorney's fees, in which jurisdiction is reserved to the jurisdiction of the judge.” All of this is normal.

Cut to a year later and the claimant files a new petition for benefits. The E/C denies the petition on the grounds of statute of limitations. Their argument is that since the claimant withdrew the prior petition, the SOL passed therefore the new petition is barred. The judge agreed.

The 1st District Court of Appeal reversed on the grounds that the issue of fees was still open and therefore the petition had not been dismissed. In other words, the SOL remained tolled as long as the issue of attorney fees remained open.  Think about this reasoning for a minute.

What the court is saying – in almost every case – the SOL will not run if the parties resolve all of the issues except attorney fees. . . even if there is no entitlement to attorney fees.

I can say this with absolute certainty about the W/C practice: in every petition that is resolved between the parties, the claimant attorney always – ALWAYS – reserves jurisdiction to the ludge for fee entitlement. Why? Because no claimant attorney will waive a potential fee payday.

So, in every case where a petition is resolved, the SOL remains tolled and cannot expire until the parties resolve that fee issue or the judge decides the fee issue. However, in every one of these cases, the judges remove the petition off the docket thereby canceling the pending trial. What the 1st DCA says in the Longley decision is that the judge cannot remove the petition from the docket since not all of the issues are resolved.

This decision is huge and hugely flawed. It reflects nothing of the real world. And, if you read the opinion, you will see no mentioning of Section 440.19 or its language. Nothing in 440.19 mentions attorney fees. The entire SOL statute is premised on what the claimant does, not what his attorney does.

What this means going forward is that no E/C will agree at mediation to resolve the issues if a claimant attorney insists on reserving for fee entitlement. Trials will continue to remain on the docket and litigation will increase.

Also, you remember all of those SOL cases that you thought were dead?  Guess what? They’re baaaaaack!  Every claimant attorney now will run to his file room to find cases where he thought the SOL passed, but now they didn’t because the issue of attorney fees and costs remains open ... even if there is no issue of attorney fees and costs. My contempt for this decision is obvious.

Ladies and gentlemen, this case will cause a tidal wave of new litigation. The next year will be trying for many Florida E/Cs. Be prepared for an onslaught of zombie claims brought back to life because of this case. Also, be prepared to file a motion to compel a fee petition on all of your litigated claims. It is now more important than ever to  sew up fee exposure as soon as possible.

I do not think the 1st DCA understood the real world implications of this decision.

(Finally, the court shouldn’t even had used this line of reasoning in this case. If you read the facts, you can see the judge was wrong in granting the E/C’s SOL defense because the E/C paid benefits (the doctor’s re-authorization) within one year of the most recent petition.  learly, the doctor’s visit tolled the statute for another year and clearly claimant filed a new petition for benefits within that one-year period. This entire decision is unnecessary and will cost E/Cs additional waste and exposure. )

WorkCompCentral subscribers may read the Longley decision by clicking the case title in the sidebar.

Michael Rabinowitz is an attorney for Banker Lopez Gassler, a workers' compensation defense firm in Tampa. This column was reprinted with his permission from his Workers' Comp Corner blog.