Beware of Claims for Costs

Posted in Legal Alerts, Newsletters - 2021 on March 25, 2021

For years, carriers have routinely denied “penalties, interest, attorney’s fees and costs” when responding to Petitions for Benefits.  However, carriers must beware of denying “costs” as this simple act may result in exposure to thousands of dollars in attorney’s fees.

In the case of Jennings v. Habana Healthcare Ctr., 183 So.3d 1131 (Fla. 1st DCA 2015), the Court stated “Whether benefits are timely furnished, either under subsection 440.192(8) or under subsection 440.34(3), is irrelevant on the separate question of whether a party prevails, entitling the party to costs.”  Id. at 1134.  In Jennings, the claimant filed a Petition for Benefits on September 9, 2014 seeking an orthopedic evaluation. The Carrier received the Petition for Benefits on September 11, 2014. The following day, on September 12, 2014, the carrier advised that an appointment with an orthopedist had been set for September 15, 2014. Clearly, the carrier timely authorized the medical benefit and the Claimant’s attorney would not be entitled to attorney’s fees for the medical benefit that was provided.

However, the First District Court of Appeal drew a distinction between entitlement to attorney’s fees vs. entitlement to prevailing party costs. The First District Court of Appeal explained that “prevailing party costs” are mandatory under §440.34, Florida Statutes.  Therefore, so long as a carrier agrees to provide a benefit sought in a Petition for Benefits, then the claimant is considered the “prevailing party” and, consequently entitled to “prevailing party costs”.  Accordingly, if a carrier authorizes a benefit claimed in a Petition for Benefits, even the day following the Petition, the carrier would be wise to also stipulate to entitlement to prevailing party costs.  If not, then the claimant’s attorney will seek attorney’s fees for establishing entitlement to costs and the Judge will award same. See Valle v. American Airlines, 308 So.3d 1056 (Fla. 1st DCA 2020) (where the court awarded attorney’s fees to Claimant’s counsel for establishing entitlement to prevailing party costs).

Accordingly, be mindful of the claim for “costs” that is usually sought in the claimants’ Petitions for Benefits.  If the carrier should authorize any of the benefits requested in the Petition for Benefits, the carrier should also stipulate to entitlement to prevailing party costs when responding to the Petition for Benefits. Otherwise, the Carrier will face exposure to attorney’s fees for such claim.