REGAL WOOD PRODUCTS, INC., AND THE TRAVELERS, APPELLANTS,
v.
RAIMUNDO MENDEZ A/K/A RAIMUNDO ZAILA AND DIVISION OF WORKERS' COMPENSATION, APPELLEES
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The court reversed a deputy commissioner's denial of an employer/carrier's motion to dismiss a workers' compensation claim for failure to prosecute, holding that dismissal is mandatory under Florida Workers' Compensation Rules of Procedure 11(b) when no action has been taken for two years and the claimant shows no good cause.
The word 'shall' in the rule is mandatory, not discretionary, and requires dismissal of the claim when no action has been taken for two years unless a party shows good cause. The deputy commissioner abused discretion by denying the motion to dismiss when the claimant made no showing of good cause for the failure to prosecute.
[1] A workers' compensation claim is subject to mandatory dismissal for lack of prosecution if no action has been taken for a period of two years, absent a showing of good ca…
[2] The word "shall" in the Florida Workers' Compensation Rules of Procedure 11(b) indicates a mandatory duty, not a discretionary power.
Previewing 2 of 3 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“Any claim, or any petition to modify, in which it affirmatively appears that no action has been taken by request for hearing, filing of pleadings, order of Deputy Commissioner, payment of compensation, provision of medical care, or otherwise for a period of two years, is subject to dismissal for lack of prosecution.”
Establishes the statutory basis for dismissal when two years of inactivity has occurred
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Join FLexlaw to unlock all legal intelligenceClaimant suffered a stroke at work in 1978 and filed a claim on September 7, 1978, which was dismissed without prejudice on May 10, 1979, by voluntary…
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THOMPSON, Judge.
The employer/carrier (E/C) appeal a final order of the deputy commissioner (deputy) awarding permanent total disability and contend, inter alia, that the deputy erred in denying their motion to dismiss for failure to prosecute. We agree and reverse.
After becoming dizzy and vomiting on the job, claimant was taken to his doctor and was admitted to the hospital where he was diagnosed as having suffered a stroke. He filed a claim on September 7, 1978, which was dismissed without prejudice on May 10,1979, pursuant to a voluntary withdrawal. Claimant filed a new claim on May 24, 1979. On June 2, 1981, more than two years after the claim was filed, the E/C made a motion to dismiss for failure to prosecute the claim. This motion was denied with the condition that the claimant immediately request a hearing on the merits. There was no action taken, such as a request for hearing, the filing of pleadings, an order of the deputy, payment of compensation, provision of medieal care, or otherwise for more than two years, i.e., between May 24, 1979, and June 2, 1981.
The claimant contends that dismissal under Fla.W.C.R.P. 11(b) is discretionary. We disagree. Florida Workers’ Compensation Rules of Procedure 11(b) provides as follows:
Any claim, or any petition to modify, in which it affirmatively appears that no action has been taken by request for hearing, filing of pleadings, order of Deputy Commissioner, payment of compensation, provision of medical care, or otherwise for a period of two years, is subject to dismissal for lack of prosecution. Upon motion to dismiss filed by any interested party, or upon request of the Deputy Commissioner before whom the action is pending, the file shall be forwarded to the appropriate Deputy Commissioner who shall, after reasonable notice to the parties and opportunity for hearing, dismiss the claim or petition, unless a party shows good cause why the .claim or petition should remain pending, (emphasis added).
Shall is mandatory and not discretionary. See Tascano v. State, 393 So. 2d 540 (Fla.1981). The claimant made no showing of good cause for failure to prosecute and under the rule it is mandatory that the claim be dismissed. See also Anthony v. Collier County School Board, 420 So. 2d 895 (Fla. 1st DCA 1982); Handley v. Napoleon Steel Contractors, Inc., 417 So. 2d 295 (Fla. 1st DCA 1982). Under these circumstances it was an abuse of discretion for the deputy to deny the E/C’s motion to dismiss. See generally, Boeing Co. v. Merchant, 397 So. 2d 399 (Fla. 5th DCA 1981), pet. for rev. den., 412 So. 2d 468 (Fla.1982); Bair v. Palm Beach Newspapers, Inc., 387 So. 2d 517 (Fla. 4th DCA 1980). Accordingly, we reverse the denial of the E/C’s motion to dismiss for failure to prosecute.
REVERSED.
MILLS and JOANOS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Jerry Chapman, Inc. v. Ivey, 448 So. 2d 11 (Fla. 1st DCA 1984)…the employer/carrier moved to dismiss after the two-year period expired and claimant’s attorney failed to show good cause why the claim should remain pending, the deputy commissioner had no choice but to dismiss. Regal Wood Products, Inc. v. Mendez, 432 So. 2d 141 (Fla. 1st DCA 1983). Claimant’s attorney contends negotiation with counsel for the E/C concerning a fee constituted “action” within the meaning of WCRP 11(b). The examples of action set [*12] out in 11(b), however, are affirmative acts more definit…
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City OF Melbourne & Old Dominion Ins. Co. v. Dannie M. Haddock & Rockwood Ins. Co., 533 So. 2d 301 (Fla. 1st DCA 1988)…in addition to being hospitalized for several months, claimant was recovering from severe and painful injuries. As a standard for reversal of a ruling on dismissal for lack of prosecution is abuse of discretion, Regal Wood Products, Inc. v. Mendez, 432 So. 2d 141 (Fla. 1st DCA 1983), Riesgo v. Weinstein, 523 So. 2d 752 (Fla. 2d DCA 1988), we affirm. It appears from the record that although claimant reached maximum medical improvement (MMI) for the hip injury in March 1987, he has not reached MMI for the bac…
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Vassallo v. Goldwire, 18 So. 3d 670 (Fla. 1st DCA 2009)…so rejected Appellant’s argument that Appellee had the burden to show prejudice to establish a defense of laches. Rather, the JCC relied on Florida Power & Light Co. v. Callahan, 470 So. 2d 819 (Fla. 1st DCA 1985), and Regal Wood Products v. Mendez, 432 So. 2d 141 (Fla. 1st DCA 1983), as authority for dismissing the fee petition. Based on the foregoing, the JCC dismissed Appellant’s fee petition with prejudice. First, the JCC erred in relying on section 440.25(4)(i) to dismiss the petition with prejudice. Se…
Authorities Cited
- Tascano v. State, 393 So. 2d 540 (Fla. 1980)
- Bair v. Palm Beach Newspapers, Inc., 387 So. 2d 517 (Fla. 4th DCA 1980)
- Babb v. State, 397 So. 2d 399 (Fla. 5th DCA 1981)
- The Boeing Co. v. Jessee David Merchant and Flora Merchant, 397 So. 2d 399 (Fla. 5th DCA 1981)
- Anthony v. Collier Cnty. Sch. Bd., 420 So. 2d 895 (Fla. 1st DCA 1982)
- Handley v. Napoleon Steel Contractors, Inc., 417 So. 2d 295 (Fla. 1st DCA 1982)