The Fee Saga Continues: Lundy Affirmed

Saturday, July 1, 2006 | 0

(But, as predicted in, it too is certified to the Supreme Court). Lundy v. Four Seasons, Ocean Grande Palm Beach, No.: 1D05-0109 (Fla. 1st DCA, 6/20/06)

WHAT HAS HAPPENED:

The First DCA has now rejected an attack on the constitutionality of the statute. Recall in the Woods case, as reported in our recent Anticipatory Alert of 5/26/06, claimant made no constitutional attack but brought a simple "construction" argument around the term "reasonable," i.e., whether the new statute still allowed for an alternative fee to the scheduled fee, and in Woods, the court said, "No": its all schedule, all the time - - but recently it certified the question to the Supreme Court for the ultimate answer.

In Lundy, several constitutional doors have now been shut on the arguments of the claimant's bar, including: a) separation of powers; b) equal protection; c) freedom of contract and d) access to courts. However, the same question in Woods was again certified to the Supreme Court, namely, the threshold question of whether the presence of the word "reasonable" in the statute suggests a possible alternative fee. (Curiously, the court does not certify the new constitutional rulings: the Supreme Court may however pass on constutionality even though the specific question certified remains one of statutory construction.)

MKRS' Analysis:

In our Anticipatory Alert, MKRS projected the District Court would likely certify a series of questions to the Supreme Court in a number of cases, leading to an "Alderman" type showdown seen in the Social Security offset cases a few years back (MKRS was proud to have been chosen to lead oral argument in those consolidated cases).

Reporting in our recent Woods case Alert on the positive statutory construction ruling there (which MKRS long ago predicted: See MKRS' Hot Points Statutory Alert, 10/01/03), we cautioned that the "other shoe" had not yet dropped, that shoe being the constitutional challenge. Well, that shoe has now dropped. In almost every respect, the Court has rejected foreseeable attacks. There is only one door still slightly ajar at the District Court level (see Discussion below) but for now, for all intents and purposes, the statute has passed muster in every material respect at the District Court level. The Supreme Court will see a largely unified court below effectively urging the validity of the statute which improves its prospects for survival there, but that is all we can say at this time.

DISCUSSION:

The door of constitutional attack based on "access to courts" has so far been left only slightly ajar. Technically, the point was abandoned in oral argument in Lundy, but the court noted the contention lacked evidentiary support, signaling there is a possibility a given Claimant could show that no attorney, despite pounding the pavement exhaustively, was found who would take his or her case, etc. The majority (and the concurring member) both speculate they doubt a perfect case demonstrating invalidity could ever be made, but the fact remains it is a possibility, however slim. Parenthetically, concurring Judge Ervin still feels "reasonable" may be part of the statute, and gives interesting examples of some of the odd results that occur from the strict interpretation.

CONCLUSION:

As for fees -- it's still: all schedule - all the time (except medical-only fees)! The Supreme Court will now deal with both sides of the question (statutory interpretation and constitutionality) but it has been given little discussion from the District Court as might threaten the validity of the statute. As such, the odds dramatically favor affirmance but do not lead to affirmance as an inescapable conclusion. The Supreme Court will have a free hand, so to speak.

As for timing, the Supreme Court follows no time table and it remains to be seen how many cases will be certified (and how that will impact the calendar), but given the fact more cases are likely to arrive there, based on MKRS projections, we probably will not see a resolution until late Winter or early Spring unless the court elects to expedite proceedings.

Special Bulletin: It has just been learned, in consequence of the Lundy decision, one or more cases now set for oral argument on the fee issues (e.g. Campbell v. Aramark, Case No. 1D05-3672) have been canceled by the court and will now be decided on the basis of the briefs, which means they will likely also be certified in the comparatively near future (a month or two) and as such we foresee no major new rulings from the DCA. If accurate, the pace will definitely start picking up!

Supplied by H. George Kagan of the MKRS lawfirm. George can be reached by e-mail at GeorgeK@mkrs.com, or phone at 800.761.MKRS.

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