SEAVIEW HOTEL AND OLD REPUBLIC INSURANCE COMPANY, APPELLANTS,
v.
ONESIMO IRIZARRY, APPELLEE
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In a workers' compensation case, the court affirmed the deputy's award of wage loss benefits and costs but reversed the attorney fees award based on bad faith, holding that bad faith must be specifically litigated as a separate issue with direct factual evidence, not merely inferred from general testimony.
The court held that Section 440.34(2)(b) mandates that bad faith must be specifically litigated as a separate issue with factual evidence presented directly to that issue. The deputy may not simply infer bad faith from general testimony, and therefore the attorney fees award was reversed and remanded for a separate hearing with specific findings.
[1] An award of attorney fees based on bad faith in a workers' compensation proceeding requires a separate fact-finding proceeding specifically litigating the issue of bad fa…
[2] A deputy commissioner may not infer bad faith from general testimony in a workers' compensation case; factual evidence directly addressing bad faith must be presented.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the question of entitlement to attorney's fees on the basis of bad faith [must] be specifically litigated as a separate issue with factual evidence presented going directly to that issue.”
Establishes the mandatory requirement that bad faith be specifically litigated as a separate issue, not merely inferred
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Join FLexlaw to unlock all legal intelligenceOnesimo Irizarry filed a workers' compensation claim against Seaview Hotel and its insurer, Old Republic Insurance Company. The deputy commissioner aw…
The full statement of facts, procedural history, and disposition for this case are member content.
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BOOTH, Judge.
This cause is before us on appeal from an order in a workers’ compensation proceeding awarding wage loss benefits and costs, and, based on a finding of bad faith, attorney fees. We affirm the deputy’s award of wage loss benefits and costs but set aside the attorney fees award and remand for a separate hearing and specific findings of bad faith to support the award.
Section 440.34(2)(b), Florida Statutes (1979), provides for an award of attorney fees for bad faith on the part of the carrier and requires that any determination of bad faith shall be made by the deputy commissioner through a separate fact-finding proceeding. In Embry-Riddle Aeronautical University v. Vestal, 399 So. 2d 1033 (Fla. 1st DCA 1981), this court interpreted Section 440.34(2)(b), holding that, although the deputy need not conduct a completely separate hearing on the question of bad faith, “the question of entitlement to attorney’s fees on the basis of bad faith [must] be specifically litigated as a separate issue with factual evidence presented going directly to that issue.” As held in Embry-Riddle v. Vestal, 399 So. 2d at 1035, “[t]he deputy may not simply infer from general testimony that bad faith exists.”1
The language of Section 440.-34(2)(b), Florida Statutes (1979), is mandatory. The parties must specifically litigate the issue of bad faith in the manner required by Embry-Riddle, supra, which the record does not reveal was done in this case. The deputy’s inference of bad faith from the general testimony does not meet the requirements of the statute and is therefore reversed.
The award of wage loss benefits and costs is affirmed and the cause remanded for further proceedings consistent herewith.
McCORD, J., concurs.
WENTWORTH, J., specially concurs, with opinion.
. Florida Erection Service v. McDonald, 395 So. 2d 203 (Fla. 1st DCA 1981) discusses the broad discretion of the deputy commissioner in determining bad faith of the carrier as a basis for the award of attorney fees; but, in that case, a separate hearing had been held on the issue of bad faith.
WENTWORTH, Judge,
concurring specially.
I agree with the majority holding because the issue of bad faith was not raised in the proceedings below. A general claim for attorney’s fees does not per se constitute an allegation of bad faith. I would point out, however, that general testimony may constitute competent substantial evidence supporting or refuting an allegation of bad faith when it is specifically raised. See Embry Riddle v. Vestal, 399 So. 2d 1033 (Fla. 1st DCA 1981).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Fla. Erection Servs., Inc. v. Raymer McDONALD, 395 So. 2d 203 (Fla. 1st DCA 1981)
- Embry-Riddle Aeronautical Univ. & the Hartford Ins. Grp. v. Vestal, 399 So. 2d 1033 (Fla. 1st DCA 1981)