Disability Law

Still No Pre-Judgment Interest on Attorney's Fees in WC Cases

By David A. McCranie, Esq.

In civil cases where there is a statutory or contractual basis for an award of attorney's fees against the non-prevailing party, the courts also have the authority to award pre-judgment interest on those fees.  See Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla. 1996). Interest runs from the date that entitlement to the attorney's fee becomes fixed even though the amount of those fees has not yet been determined.

Not so in workers' compensation cases, however.  See Lee v. Wells Fargo Armored Services, 707 So.2d 700 (Fla. 1998).  The reason for the difference, explained the supreme court in Lee, is that in workers' compensation cases entitlement to the fee does not become fixed, and therefore cannot be paid, until it is first reviewed and approved by the JCC.

But with the 2003 amendments to §440.34, the legislature took the guesswork out of determining the amount of fees to be paid to a successful claimant's attorney.  As currently construed, that amendment requires that the amount of the fee be a specified percentage of the benefits secured by the attorney.  Does this mean that the JCC may now award prejudgment interest on attorney's fees because the amount of fees has become "fixed"? Nope.  That's what the First DCA said in Pruden v. Herbert Contractors, Inc., decided on 7/30/2008.  The court held that notwithstanding the 2003 amendment, §440.105(3)(c) still prohibits the payment of a fee until it is approved by the JCC.

Full post as published by Florida Workers’ Compensation Law Blog on August 02, 2008 (boomark / email).