Statute of Limitations does not run if a claim for attorney fees remains open

Wow. This one is a doozy.

For years, the assumption about the Statute of Limitations (SOL) was “form over substance.”  A Claimant has 2 years from the date of accident and then 1 year from the last date of provided benefits to file a PFB.  If he fails to comply within those time periods, he is barred forever from bringing a claim against the E/C.  This was one of the first blog entries I wrote.  You can read about the basics of SOL here.  (For a video reference, click here.)

If you read s. 440.19 (the SOL statute) not once does it mention that the SOL tolls over a claim for attorney’s fees.  The whole premise is based on giving the E/C and Claimant a ticking clock from the last date of benefits.  Attorneys fees have nothing to do with the SOL.

Except now. . .

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Calculating fees: paralegal time is not a “cost”

Keep in mind that this post refers to Claimant paid fees, not the Employer/Carrier paid fees that we have been obsessing over with the Emma Murray decision.  But, since this is in the same neighborhood of section 440.34, there parallels between the two Claimant attorney based fees are going to be made.  And, the recent case of Demedrano v. Labor Finders will undoubtedly push forth a new debate about Claimant attorney fees.

 

Claimant still has to pay E/C costs when he dismisses a petition for benefits

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.