MEMORANDUM
| TO | : | Clients |
| FROM | : | Pyszka, Blackmon, Levy, Mowers & Kelley |
| RE | : | Emma Murray v. Mariner Health and Ace USA , 2008 WL 4659381, Fla., October 23, 2008 (NO. SC07-244) |
| DATE | : | November 4, 2008 |
The Florida Supreme Court recently decided the Emma Murray case which as most of you know, was based on a challenge to the constitutionality of the statutory language of F.S. 440.34(3). The Florida Supreme Court held that an ambiguity results when Section 440.34(1) and (3) are read together. Because of this ambiguity in the statutory language, the Supreme Court decided that a reasonable attorney’s fee for claimants is to be determined using the factors of rule 4-1.5(b) of the Rules Regulating the Florida Bar. The Court cited Lee Engineering & Construction v. Fellows , 209 So.2d 454 (Fla. 1968). The Florida Supreme Court did not reach the constitutional issues raised in Murray but rather decided the case based on statutory construction. The opinion is not yet final and a Motion for Re-Hearing may still be filed.
In essence, this is a reversion to the pre-October 1, 2003 law in which claimant’s attorneys may be awarded a fee based on the hours expended on obtaining the benefits. The pre-October 1, 2003 attorney fee statute still held that the statutory fee guidelines were to be applied; however, it allowed for the Judge of Compensation Claims to deviate from the statutory guidelines using the Lee Engineering factors.
The case will apply to all pending cases with dates of accident after October 1, 2003. Thus, settled cases for which an order has been signed by the Judge of Compensation Claims will unlikely be affected. If there are cases in which there is still no signed order from the Judge of Compensation Claims but for which there is a mediation agreement, then the carrier’s position should be that the agreement was binding on the parties and the terms of the settlement cannot be renegotiated. Where there has been an informal settlement of a post-October 1, 2003 case, then using the same reasoning which permitted the employer/carrier to enforce these informal agreements before the Judge of Compensation Claims, the carrier should seek enforcement of the informal settlement agreement. Generally, Employer/Carrier Motions to Enforce Settlement Agreements where there is no mediation agreement prevail where the evidence demonstrates a meeting of the minds; for example, exchange of letters between the defense and claimant’s attorneys confirming settlement and the terms of same.
The Murray decision may impact the statutory fee limits for “medical only” claims under F.S. 440.34(7). Although this was not an issue in the Murray case, the claimant’s bar may argue that the Lee Engineering factors should apply to “medical only” cases based on the “reasonable fee” language of F.S. 440.34(3).
At present there is no cap on the hourly fee that a claimant attorney may be awarded. However, the Judges of Compensation Claims have awarded the customary fee charged in the community which usually is between $200.00 - $300.00 per hour. The Legislature will likely amend the section declared ambiguous. However, precisely what changes will be made remains to be seen. One option is a cap on the hourly fee that may be awarded to the claimant’s attorney under the attorney fee scheme enunciated in Murray . Another option the Legislature may choose is to eliminate “reasonable” from the statutory language which would overturn Murray .
Should you have any questions or concerns regarding the Murray decision, please do not hesitate to contact us.