MARIA BUITRAGO, APPELLANT,
v.
LANDRY'S AND ACE USA, APPELLEES
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Maria Buitrago appeals a workers' compensation judge's award of attorney's fees calculated under the statutory guideline formula in section 440.34(1), Florida Statutes. The First District Court of Appeal affirms the fee award and rejects the claimant's constitutional challenges to the amended statute, following recent precedent.
The court affirmed the Judge of Compensation Claims' award of trial attorney's fees based on the statutory guideline formula and rejected the claimant's constitutional challenges to the statute as constrained by recent precedent. The court denied the motion for appellate attorney's fees, finding the unsuccessful claimant failed to demonstrate the 'heavy burden' required under Wick Roofing to justify discretionary appellate fees.
[1] Constitutional challenges to the amended provisions of section 440.34(1), Florida Statutes (2003), regarding attorney's fees in workers' compensation cases have been prev…
[2] Appellate courts may award attorney's fees to an injured employee or dependent in proceedings for review of a workers' compensation claim, award, or order, in the court's…
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Join FLexlaw to unlock all legal intelligence“we are constrained to affirm the JCC's award of a reasonable attorney's fee based on the statutory guideline formula”
The court's holding that it must follow precedent in affirming the fee award based on the statutory formula
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Join FLexlaw to unlock all legal intelligenceMaria Buitrago was a claimant in a workers' compensation proceeding. The Judge of Compensation Claims awarded attorney's fees in strict accordance wit…
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PER CURIAM.
The claimant, Maria Buitrago, appeals the Judge of Compensation Claims’ (JCC) order awarding an attorney’s fee in strict accordance with the guideline formula set forth in section 440.34(1), Florida Statutes (2005). The appellant’s constitutional challenges to this statute, as significantly amended in 2003, were considered and rejected in our recent decisions in Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So. 2d 506 (Fla. 1st DCA 2006); and Campbell v. Aramark, 933 So. 2d 1255 (Fla. 1st DCA 2006). Accordingly, we are constrained to affirm the JCC’s award of a reasonable attorney’s fee based on the statutory guideline formula. See Wood v. Fla. Rock Indus., 929 So. 2d 542 (Fla. 1st DCA 2006), granting motion for certification, 929 So. 2d 545 (Fla. 1st DCA 2006).
The claimant has moved for an appellate attorney’s fee pursuant to section 440.34, Florida Statutes (2003). In both the 2003 and 2005 versions of this workers’ compensation fee statute, subsection (5) states:
If any proceedings are had for review of any claim, award, or compensation order before any court, the court may award the injured employee or dependent an attorney’s fee to be paid by the employ er or carrier, in its discretion, which shall be paid as the court may direct.
Although we acknowledged in City of Miami v. Burnett, 596 So. 2d 478, 479 (Fla. 1st DCA 1992), that the “judicial imprimatur on the discretionary allowance of attorney fees is enveloped in an aura of age,” nevertheless, “we think the appellate court should impose upon an unsuccessful claimant-appellant a heavy burden to show the justification for the allowance of additional attorneys’ fees under such circumstances.” Wick Roofing Co. v. Curtis, 110 So. 2d 385, 387 (Fla.1959). In the motion for fees, the unsuccessful claimant has not demonstrated (or even alleged) how this appeal satisfies the “heavy burden” under Wick Roofing to justify the discretionary allowance of appellate attorney’s fees.
As in Wood, Lundy, and Campbell, we certify the following as a question of great public importance:
DO THE AMENDED PROVISIONS OF SECTION 440.34(1), FLORIDA STATUTES (2003), CLEARLY AND UNAMBIGUOUSLY ESTABLISH THE PERCENTAGE FEE FORMULA PROVIDED THEREIN AS THE SOLE STANDARD FOR DETERMINING THE REASONABLENESS OF AN ATTORNEY’S FEE TO BE AWARDED A CLAIMANT?
We AFFIRM the JCC’s order on trial attorney’s fees and costs and DENY the motion for appellate attorney’s fees.
WOLF and VAN NORTWICK, JJ., concur. BROWNING, J., concurs in part and dissents in part with written opinion.
BROWNING, J.,
concurring in part and dissenting in part.
I concur with the majority opinion, except as to the failure to grant appellate attorney’s fees, from which I dissent. I would grant attorney’s fees to the claimant. The claimant has not been afforded the opportunity to demonstrate how this appeal satisfies the “heavy burden” under Wick Roofing and Florida Rule of Appellate Procedure 9.400, which does not require an allegation in a motion for attorney’s fees beyond a statutory reference to section 440.34(5), Florida Statutes.
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Lowry v. Cent. Leasing Mgmt., Inc., 18 So. 3d 550 (Fla. 1st DCA 2008)…d equates to little more than $16.00 an hour. We are constrained to affirm the JCC’s order in all respects. See Murray v. Mariners Health/ACE USA, 946 So. 2d 38 (Fla. 1st DCA), rev. granted, 969 So. 2d 1014 (Fla. Oct.30, 2007); Buitrago v. Landry’s, 949 So. 2d 1046 (Fla. 1st DCA 2006); Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So. 2d 506 (Fla. 1st DCA), rev. den., 939 So. 2d 93 (Fla.2006); Campbell v. Aramark, 933 So. 2d 1255 (Fla. 1st DCA), rev. den., 944 So. 2d 986 (Fla.2006); Wood v. Fla. Rock Indus…
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Chambree Payne v. Wal-Mart, 963 So. 2d 308 (Fla. 1st DCA 2007)…PER CURIAM. We AFFIRM the JCC’s order on trial attorney’s fees and costs and DENY the motion for appellate attorney’s fees. Buitrago v. Landry’s, 949 So. 2d 1046 (Fla. 1st DCA 2006); Lundy v. Four Seasons Ocean Grand Palm, Beach, 932 So. 2d 506 (Fla. 1st DCA 2006), review denied 939 So. 2d 93 (Fla.2006). BARFIELD, ALLEN, and HAWKES, JJ., concur.…
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Buitrago v. Landry's, 3 So. 3d 1192 (Fla. 2009)…PER CURIAM. We have for review Buitrago v. Landry’s, 949 So. 2d 1046 (Fla. 1st DCA 2006), in which the First District Court of Appeal certified a question of great public importance. We have jurisdiction. See art. V, § (3)(b)(4), Fla. Const. We stayed proceedings in this case pending our disposition of Murray v. Ma…
Authorities Cited
- City OF Miami v. Lucious E. Burnett, 596 So. 2d 478 (Fla. 1st DCA 1992)
- Wick Roofing Co. v. Glenn D. Curtis & the Fla. Indus. Comm'n, 110 So. 2d 385 (Fla. 1959)
- Lundy v. Four Seasons Ocean Grand Palm Beach & Liberty Ins. Grp., 932 So. 2d 506 (Fla. 1st DCA 2006)
- Wood v. Fla. Rock Indus. & Crawford & Co., 929 So. 2d 542 (Fla. 1st DCA 2006)
- Barney E. Tully, Jr. v. State, 933 So. 2d 1255 (Fla. 1st DCA 2006)