As referenced in a previous post, and via section 440.34(3), an Employer/Carrier that prevails at trial can seek reimbursement of its costs from Claimant.  Now comes a new First DCA decision that takes this law a step further. 

In Palm Beach County School District v. Ferrer, the Court ruled that an Employer/Carrier can seek cost reimbursement from a Claimant, even if the parties do not go to trial.   In Ferrer, Claimant dismissed seven petitions on the eve of trial.  The Employer/Carrier deemed this a victory and file a Motion to tax costs from Claimant.  The JCC denied the motion on the grounds that the parties never went to trial, therefore no one “prevailed.”   The First DCA disagreed, reasoning from case law that when a plaintiff dismisses its action, the defendant is deemed the “prevailing party.”   

This is excellent news for Employers and Carriers.  It broadens the s. 440.34(3) beyond the realm of trial.  It puts the onus on Claimant to decide whether it is worth to pursue a claim that may not pan out during discovery.   With many expecting a liberal attorney fee decision to come out of the Supreme Court with Emma Murray, this case seems like a tort reform decision to counter the increase litigation that is expected.

A quick sidenote: the Ferrer decision does not apply to resolved petitions.  If an Employer/Carrier provides the benefits sought in the petition and Claimant dismisses the suit, then it is obvious that Claimant has prevailed.

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