The Failure to Prosecute Conundrum

Wednesday, April 24, 2013 | 0

There has been clarity recently in the attorney fee litigation process. The 1st District Court of Appeal held that when an attorney fee issue remains pending in a case, the petition for benefits that initiated that claim will likewise remain open. Longley v. Miami Dade County School Board, 82 So.3d 1098 (Fla. 1st DCA 2012). When this decision came down, there was much discussion among the employer/carriers and the attorneys that represent them. There was a similar volume of discussion by claimant’s attorneys, albeit from a different perspective. This is to be expected; the perspectives of these two diverse groups are rarely coincident.

Intertwined in this analysis was the proposal regarding compelling attorney fee motions, which arose in the last rules cycle, and which resulted in Rule 60Q6.124(4): (“Upon motion by any party, the judge may require the claimant to file a verified motion for attorney’s fees and costs and adjudicate the verified motion for attorney’s fees and costs.”). There is an old adage in the insurance industry, “a good claim is a closed claim.” Frankly, I think there are many on both sides of the table that feel that way, at some point, in most claims. This thought process drove the effort to have some way to bring attorney fee issues to the fore in the appropriate setting, thus the rule.

Since this became the rule last fall, there have been many such Motion to Compel Verified Motions filed (please note that the rules no longer reference “verified petitions” for fees, but instead we have transitioned to the “verified motion,” see Rule 60Q6.124(3)(a)). I have seen some Motions to Compel granted, others denied. I periodically hear from both sides that there seems little consistency with this process.

I have even more recently seen a few Motions to Dismiss for Failure to Prosecute, pursuant to Fla. Stat. §440.25(4)(i): (“A judge of compensation claims may, upon the motion of a party or the judge’s own motion, dismiss a petition for lack of prosecution if a petition, response, motion, order, request for hearing, or notice of deposition has not been filed during the previous 12 months unless good cause is shown.”). The employer/carriers in these instances are not seeking to force prosecution of the fee issue (whether entitlement or amount) as under the Rule. Under the statute, they are seeking dismissal of the fee issue, just as with any other failure to prosecute.

The constriction of fees passed in 2009, which removed the “reasonable” from Fla. Stat. §440.34, and eliminated much of the hourly fee entitlement from Chapter 440, has increased the importance of determining the "value of benefits obtained." Many great attorneys historically felt that this finding was important under the prior versions of Fla. Stat. §440.34, and did significant work to document and value the benefits obtained.

However, the current fee statute makes this factual work critical to the fee. Attorneys struggle with the fact that a reasonable determination of this fact may not be practical or even possible until many months have passed. During the passage of time, claimed benefits are provided and may lead to other benefits being provided. This will be particularly true in compensability cases and many medical benefit claims, where a significant volume of benefits may result over time from one critical determination early in the litigation.

The judge is therefore presented with conflicting interests. The E/C wants a closed file, the claimant's counsel finds it too early to viably determine the value of the benefits. Thankfully, this is not alien to the judge. Conflicting interests are what we do. There will be many cases in which one interest will outweigh other interests, and a determination will be made. Obviously, most such decisions result in one party finding the Judge’s decision brilliant and the other finding it intellectual refuse. 

It is recommended that parties discuss these situations. The “good faith” requirements of Rule 60Q6.115 (“Except for motions to dismiss for lack of prosecution . . .”) specifically do not apply to motions to dismiss for failure to prosecute. It is therefore probable that the discussion in these instances will not occur before the motion is filed. However, once the motion is filed there should be a good faith discussion regarding the subject of the subject motion.

There may be circumstances in which the facts would preclude the dismissal of the fee claim. There may be others in which the balancing of considerations will result in denial of the motion to dismiss, despite the existence of seemingly sound factual grounds. In either instance, a withdrawal of the motion might be an appropriate process to conserve judicial and attorney resources. In yet others, the dismissal may be the appropriate outcome.

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