Florida Supreme Court Holds Workers Comp Attorney Fee Provision Unconstitutional

In one month, two Florida appellate courts have found separate provisions in the Florida Workers Compensation statute unconstitutional.  Most notably, the Florida Supreme Court held that the attorney fee provision is unconstitutional and that the courts are to revert back to the “reasonable” attorney fee standard according to the former 2008 statute.

In Marvin Castellanos v. Next Door Company et al., the Florida Supreme Court held that the mandatory attorney fee schedule in Florida Statute 440.34 eliminates the requirement of a “reasonable” attorney’s fee to the successful claimant.  The majority opinion held that the right of the claimant (not the lawyer) to obtain a reasonable attorney’s fee has been a critical feature of workers comp law and that the mandatory fee schedule violated due process.  Essentially, the argument is that, absent a lawyer, an injured worker cannot navigate the “increasingly complex… thicket” of comp law.  In this particular case, the claimant lawyer put in a little over 100 hours and was “awarded” about $165 total.  On the flip side, however, the dissent noted that the claimant was only awarded about $820 and that the lawyer was seeking $36,000 in fees.

The majority opinion provides a clear explanation of comp law dating back to World War II.  The essence is that the Legislature has struggled to create a practical and politically-satisfying attorney fee structure under the workers comp statute.  In 2008, the statute had provisions which referenced attorney’s being entitled to ‘reasonable’ fees in one section and a mandatory fee schedule in another.  The Florida Supreme Court held that courts should use the “reasonable” standard.  So, the next year, the 2009 statute was revised and “the Legislature… eliminated any consideration of reasonableness…”  The inability to obtain counsel, which the majority held was the “linchpin” of the comp framework, was frustrated by this revision and was a violation of due process.

As mentioned above, another Florida court found a different section of the comp statute unconstitutional.  Specifically, the First District held, in Miles v. City of Edgewater Police Dept, that restrictions in Florida Statute 440.105 and 440.34 were unconstitutional violations of a claimant’s right to free speech, association, petition, right to contract and that the criminal penalties under section 440.105(3)(c) were unenforceable against lawyers.

Quick notes — the Castellanos case went to the Florida Supreme Court as an issue of “great public importance.”  It was on the Court’s “high profile case” list, here.

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