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Langham: Attorney Fee Legislation

  • State: Florida

During the 2020 legislative session, I had multiple people mention their happiness that attorney fees were not on the agenda. There have been multiple discussions of attorney fees in workers' compensation since the Supreme Court imposed its reasonableness standard, which the Court originally legislated in Lee Engineering v. Fellows, 209 So. 2d 454 (April 10, 1968). There, the Court created standards for attorney fees in workers' compensation cases.

Judge David Langham

Judge David Langham

That Lee Engineering analysis predates the Court becoming embroiled in a decades-long encroachment/delegation relationship with the Florida legislature regarding workers' compensation, which was somewhat sorted in Amendments to Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004). The compatibility of a court-created fee standard, and separation of powers, was not a critical element of the Court's re-adoption of its own standards in Castellanos v. Next Door Company, 192 So. 3d 431 (Fla. 2016). Whether it will enter into future considerations or not remains to be seen.

There is more discussion of separation of powers in Legislating or Adjudicating. There are multiple other discussions in this blog of Castellanos, and Miles v. City of Edgewater Police, 190 So. 3d 171 (Fla 1st DCA 2016). The search bar in the upper left allows you to search these or any terms to see what this blog may contain.

Since the 2016 decision, there has been legislative discussion of workers' compensation attorney fees. In The Return of Discretion, One Way or Another, the 2017 session bills are discussed. In 2019, there was House Bill 1399 and Senate Bill 1636. These were broader revisions to Chapter 440, but the debate around them included attorney fees. But, in 2020, there was no bill regarding workers' compensation attorney fees.

That does not mean that attorney fees were necessarily out of mind. Early in the 2020 process there was Proposed Committee Bill (PCB) JDC 20-03. The focus was on attorney fees awarded pursuant to section 57.104 ("In any action in which attorneys’ fees are to be determined or awarded by the court"). This bill would have precluded the use of a "contingency fee multiplier" in determining those fees.

When introduced as House Bill 7071, however, the bill instead addressed section 627.428 Fla. Stat. ("attorney fees under this section for a claim arising under a property insurance policy"). Instead of precluding a fee multiplier, that bill would have created a "strong presumption" that "a lodestar fee is sufficient," in such cases. That could be rebutted "only in a rare and exceptional circumstance" in which it is demonstrated "that competent counsel could not be retained in a reasonable manner."

A "lodestar" method involves the court that is awarding attorney fees "multiplying a reasonable hourly rate by a reasonable number of hours," according to U.S. Legal. That is also discussed in the staff analysis prepared by the House. This discusses the practice in some fee award cases of increasing the fee by use of some "multiplier." That process is likely some tacit recognition that if a party prevails, the compensation should be enhanced in light of the potential that party might not have prevailed.

As the Florida House staff noted, the federal courts apply such a multiplier only in "rare circumstances." It also notes that the Florida Supreme Court has not applied that limitation, leading to Florida state and federal law "differing with respect to this issue." Some will see distinctions as inherently troubling. Others may see reasons for federal cases to be different, perhaps because of the types of claims litigated in those courts.

The House Bill (HB) was filed in February. The House Commerce Committee voted favorably on Feb. 13, 2020 and the bill was referred to the House Calendar for consideration and vote. It was read in the House three times, the last of these on March 4, 2020. The bill then went to the Senate in messages, and was referred to the Banking and Insurance Committee. According to the House website, that is where it "died." The legislature uses that term when a bill simply fails to progress further.

There was a companion bill in the Florida Senate, Committee Substitute (CS) for Senate Bill (SB) 914. which was significantly similar, and later described as "identical." The latest Senate staff analysis in the Judiciary Committee clarifies that this bill would conform Florida and federal law regarding contingency fee multipliers. The Senate Banking and Insurance Committee voted favorably on the bill in January. The Senate Judiciary Committee was also favorable on Feb. 4, 2020. The bill was thereafter referred to the Senate Rules Committee. It "died in Rules" on March 14, 2020.

Thus, while 2020 brought respite in the debate of revisions to workers' compensation, there was discussion of attorney fees. Those bills were not ultimately successful, but the subject of attorney fee calculation appears to be of some ongoing interest in Tallahassee. As we wait through the summer, the next legislative session looms, and one may wonder what 2021 will bring.

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

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