If you read this blog regularly, you know my mission to determine whether an E/C’s right to tax costs against Claimant is “toothless”.  There have been cases where the First DCA affirmed the right to tax costs, and a case where the Court confirmed that E/C’s cannot seek enforcement of an order to tax costs through rule nisi, like a Claimant can.   An E/C can seek enforcement of an order through a court of appropriate jurisdiction.

My thoughts were that an E/C could seek some level of “enforcement” through s. 440.24(4) which gives the JCC power to dismiss a pending PFB if Claimant does not comply with the Judge’s order.  The statute is clear in its regard.  The question is: would the First DCA enforce it?

The answer is. . . almost?

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While the courts still have not found a way for an E/C to collect an Order to Tax Costs, the litigation continues as to whether an E/C has a right to tax costs.  

In the latest case, the First DCA finds that an E/C can recover all “reasonable costs,” not just deposition costs, but also IME costs.  The Court also goes through quite a few other arguments to s. 440.34(3).

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In my last blog entry, I wrote about whether the E/C’s right to tax costs is enforceable.  The problem being that chapter 440 provides no relief, in the form of rule nisi, for an E/C to enforce an order to tax costs against claimants.  My position was that it was unlikely that the Legislature would create a right to tax costs for E/C’s but not give them the power to enforce through rule nisi.  In fact, I wrote the following:

After all, the Florida Supreme Court held in Emma Murray that “a statute will not be construed in such a way that it renders meaningless or absurd any other statutory provision.”  By following the argument of these Claimant attorneys, the First DCA would be rendering s. 440.34(3) meaningless.

Well, it looks like I have to eat my words.  The First DCA just ruled in a case based on the theory that if the Legislature wanted to put something in the statute, then they would’ve written it in.   Let’s analyze it. (more…)

I’ve recently had this discussion with a few Claimant attorneys and their position regarding section 440.34(3), which gives the “prevailing party” the right to seek taxation of costs against the opposing party.  As many fans of this blog know, the First DCA ruled that such a provision does apply to Employer/Carriers and that even a mere dismissal of a PFB renders an E/C the “prevailing party.”

Now these Claimant attorneys are not disputing these rulings.  They are contending that the section is “toothless” in terms of an Employer/Carrier trying to enforce a judge’s order to tax costs against a Claimant.  (more…)

File this one under obvious decisions: Claimant asserts temporary partial disability benefits for a four month period.  The E/C asserts that Claimant is not entitled to any TPD payments since he voluntary limited his income during the entire time.  After a trial, the Judge found that Claimant was entitled to the entire period of TPD payments except for one week (presumably Christmas vacation). 

The E/C then filed a motion to tax costs under s. 440.34 for winning the one week of denied benefits. 

What do you think happened?

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One point of W/C law that has become clear in the past few years since I started this blog: the First DCA sees no difference in a Claimant taxing costs and an Employer/Carrier taxing costs.  The Court ruled that the procedure is the same as a Claimant seeking taxable costs and they ruled that Claimant can be considered a “non-prevailing party” subject to cost taxation.

Now comes a new case confirming that there are no time limits for an E/C to file a motion to tax costs against a Claimant. . . at least for now. (more…)

Section 440.34(3) has gone through a defining phase over the last two years–to coordinate with the rise and fall of Claimant hourly fees.  The First DCA seems to place the E/C’s right to tax costs on the same footing as Claimant’s right to tax costs.  However, some of the lower courts have not embraced this quite yet.  Hence, the Court’s most recent decision mandating JCC’s to treat an E/C’s Motion to Tax Costs the same as Claimant’s Verified Fee Petition.

In the eyes of the First DCA, the procedure in taxing costs should be the same for both parties.

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