As we all eagerly await the Florida Supreme Court’s decision in the Emma Murray case, the First DCA may have tipped their hand as to how they anticipate the winds of Workers’ Compensation are blowing.

In Brian Lowry v. Central Leasing Management/Zurich, the Court certified the following question to the Supreme Court:

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?

If this question seems familiar, it is the same exact language the First DCA used in their Emma Murray decision.  Many feel (including yours truly) that by watching the Emma Murray oral arguments this past April that the Supremes will not strike down section 440.34 as unconstitutional but will interpret the law as being statutorily ambiguous.  The Supremes will not interpret a statute unless there is some ambiguity in the language. 

The Supremes in the Emma Murry oral argument focused on the statutory construction of section 440.34(1) and how it contradicts the “reasonable” language in section 440.34(3).  If a an attorney’s fee must be calculated by the statutory formula, then why call it “reasonable?”  The word “reasonable” calls for a judge’s discretion to define it.  The Supremes lazered in on this inherent contradiction at oral arguments.

With this Lowry decision, it appears the First DCA awaits the Supremes to decide Emma Murray and anticipating the High Court to make their decision on the basis of statutory construction.

You can view the Emma Murray oral arguments here.

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