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Workers' Compensation

What's Hot in Workers' Comp

Personal representative’s status will revert back to petition for benefits’ filing date, even though claimant’s counsel filed this petition and attached an older fraud acknowledgement signed by the decedent prior to his death.

Estate of Ronald McKenzie, through the personal representative Terry McIntosch v. Hi Rise Crane, Inc./Bridgefield Employers Ins. Co., First District Court of Appeals, No. 1D20-3307, Decision date: Aug. 19, 2021, On appeal from Judge Forte

October 1, 2021

by Linda Wagner Farrell

Before the injured worker died, petitions for benefits had been filed identifying a January 26, 2018, date of accident. Those petitions were dismissed shortly after the injured employee’s death. No activity occurred until January 24, 2020, when the attorney for the decedent filed a petition for benefits on behalf of Terry McIntosch, as the personal representative of the decedent’s estate. A certificate of good faith effort and the fraud acknowledgment, which had been signed by the injured worker in February 2008, were attached to the new petition. McIntosh petitioned the circuit court for appointment as personal representative shortly after the petition for benefits was filed and later received the appointment in July 2020.

The employer/carrier moved to dismiss the pending petition and alleged that McIntosh was not the personal representative at the time the petition for benefits was filed. They also asserted the petition was not compliant with the statutory requirements because McIntosh was not the one who had signed the attached certificate and acknowledgment.

McIntosch then moved to amend the petition for benefits, contending that her appointment as personal representative should relate back to the January 2018 date, when the petition for benefits was filed, which was just before the statute of limitations ran. The motion was accompanied by an amended petition for benefits with the acknowledgment signed by her.

The judge of compensation claims rejected the argument that the relation back doctrine would apply. The judge noted that there is a distinction between a civil complaint and a petition for benefits because section 440.105 (7) mandates that anyone making a worker’s compensation claim provide an attestation that they are not giving any false or misleading information, while there is no such requirement in civil cases. The judge also held that because the acknowledgment attached to the original petition was signed by the decedent before he died, McIntosch “did not legally acknowledge by her signature making a worker’s compensation claim.” The judge further reasoned that the decedent’s attorney was without legal authority to file the petition because his representation of the decedent ended with his death and that, if McIntosch was making the claim, she was required to sign the statutorily required acknowledgment.

The judge also rejected the decedent’s attorney’s explanation that he did not have McIntosch sign the form because of time constraints and he was concerned that her signing could potentially subject her to insurance fraud. The judge found that the petition was null and void as the employee was deceased when the petition was filed and claimant’s counsel was without legal authority to represent him. The judge denied the motion to amend and dismissed the petition for benefits. McIntosch then appealed.

The First District Court of Appeal held, however, that the statute supports that anyone who is making a claim must sign a certificate acknowledging the ramifications of filing a statement of claim containing any false or misleading information. They pointed out that the acknowledgment itself does not identify the claimant but, rather, identifies the person making the acknowledgment. They also pointed to a prior case, Padilla v. Collins Contracting, 22 So. 3d 124 (Fla. 1st DCA 2009), which held that dismissal is not appropriate if the person making the claim fails to provide the statutory acknowledgment. Rather, it requires a suspension of benefits until the claimant signs the acknowledgment.

The court outlined that in Padilla, the Florida Administrative Code Rule 60 Q-6.107 (1) indicates petitions will be dismissed only for failure to comply with section 440.192 (2)–(4), Fla. Stat. Therefore, there was no reason not to apply the same rationale here. Consequently, they held that the judge erred in dismissing the petition because it did not include an acknowledgment signed by McIntosch.

The court further held that the judge also erred in concluding that the decedent, not McIntosch, was the claimant, leading her to find that the attorney lacked the authority to file the petition. As a result, the judge incorrectly rejected the relation back doctrine’s applicability. They noted that claimant’s counsel filed the January 2020 petition on behalf of McIntosch as a personal representative of the decedent’s estate, not on behalf of the decedent, and, thus, he did not act beyond his authority.

In addition, although McIntosch was not yet the personal representative at the time of the filing, Section 733.601, Fla. Stat. (2020) provides that a personal representative’s powers “relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those are occurring after appointment.”

The case was reversed and remanded for further proceedings consistent with the opinion.

 

What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

First DCA Reverses Excessive Jury Award Unsupported by the Evidence

In December 2019, the plaintiffs filed a claim with Universal for damages caused by a water and sewage back up through the plumbing system and existing through multiple fixtures including the washing machine drain, kitchen sink, dishwasher, bathtub and toilet. Universal investigated the claim, issued payment for resulting water damage totaling $7,000.00 in actual cash value ($12,000.00 in replacement cost value). The plaintiffs sought additional benefits for work needed to access the below-slab cast iron plumbing system due to the failure of the system from rust, deterioration, corrosion and breaks in the line. Universal denied any additional benefits for access. In 2021, the plaintiffs filed suit. During litigation, Universal sent a plumber to inspect the home and the plumber concluded the pipes were clogged but could be cleaned. The plaintiffs’ plumber testified that the plumbing system needed to be replaced due to holes and openings in the pipes. The plaintiffs introduced two estimates prepared by Triad Restoration services totaling $79,680.22 in replacement cost value and $50,219.97 in actual cash value and an executed contract with another company for repairs with the amounts of repair redacted. Since the insurance policy did not provide coverage for repair or replacement of the plumbing system, the jury only had to decide whether the plumbing system needed to be replaced, and if it did, Universal would owe for the access costs; the jury verdict form required the jury to determine both the replacement cost value and actual cash value amounts. The jury asked if it had to rely on the Triad estimates for their amounts. The trial court advised the amount awarded had to be based on the evidence presented at trial and the law given by the trial court. The jury awarded $335,000.00 in replacement cost value or $305,000.00 in actual cash value. Universal motioned for a new trial arguing the amount awarded was unsupported by the evidence and then moved for remittitur. The trial court denied both motions and this appeal followed. The court found that while a jury’s verdict should only be disturbed with caution and discretion, the trial court must give the properly challenged award close scrutiny and determine whether it bears a reasonable relation to the damaged provided, is supported by the evidence, and could have been reached in a logical manner by reasonable means §768.74(3), (5)(d)-(e), Fla. Stat. The court found the trial court did consider the statutory requirements at the hearing on Universal’s remittitur motion and was concerned about a reasonable relation to the amount of damages proved and injury suffered and whether the award was supported by the evidence, but ultimately denied the motion, reasoning that the jury had been properly instructed to fairly and adequately compensate the plaintiffs. The court noted the only evidence providing the basis for the jury verdict was Triad’s estimates and those valued the plaintiffs' claimed loss at $79,680.22 in replacement cost value and $50,219.97 in actual cash value; no valuation evidence reasonably supported the jury verdict. The plaintiffs argued that the jury was entitled to consider more than the estimates, but the court conveyed the evidence provided did not give the jury a way to reach the amounts they awarded. The court was also not swayed by the plaintiffs’ argument regarding inflation and later price increases, but the court noted that no evidence via the contract, nor testimony regarding increase in labor, material, fuel or construction costs were entered into the record.  The court concluded the jury may draw reasonable inferences from the evidence, but it may not supply a damages number by speculation. The court did not find any of the plaintiffs’ remaining argument persuasive either. The court reversed the denial of Universal’s remittitur motion and motion for new trial as to damaged and remanded the case. The court ended its opinion with advising the trial court must determine whether replacement cost value or actual cash value is the property measure of damages under the policy and order remittitur in an amount consistent with that determination and the evidence.

Thought Leadership

Appeals Court Reverses Trial Court Order Awarding Attorney’s Fees Due to Lack of Evidence to Support Fee Awarded

The Fourth District Court of Appeal reversed the trial court’s order awarding appellate fees to People’s Trust Insurance Company based upon a lack of evidence to support the attorney’s fee award in RM & Assocs. Consulting, Inc. v. People's Trust Ins. Co., 2026 Fla. App. LEXIS 4654 (Fla. 4th DCA 2026). People’s Trust was the insurer of a residential property that had sustained water damage. RM & Associates Consulting was hired by the homeowner to perform mitigation services at the property. The homeowner assigned post-loss benefits to RM and RM subsequently filed suit against People’s Trust alleging that it had not been paid the money it was owed for the mitigation services. People’s Trust defended the lawsuit on the ground that the policy required the insured to notify the insurer before authorizing repairs so People's Trust could elect to use its preferred contractor. Because the owner did not comply with that provision, People's Trust asserted its liability was limited to the amount that its preferred contractor would have charged for the work, which People's Trust contended was $2,000. People's Trust paid that amount to RM before RM filed suit. People’s Trust filed a motion for summary judgment which was granted. RM appealed the summary judgment ruling and the ruling was upheld by the Fourth District Court of Appeal. The appellate court also granted People’s Trust’s entitlement to appellate attorney’s fees, subject to the trial court’s determination of the amount of fees, based upon an offer of judgment made by People's Trust. On remand, the trial court held an evidentiary hearing to determine the amount of attorney’s fees People’s Trust was entitled to. At the hearing, People’s Trust presented testimony from it’s fee expert, supervising trial counsel and appellate counsel. People’s Trust sought recovery of $24,866.17 for work performed by appellate counsel. The request primarily consisted of work performed in preparation of the answer brief. The fee expert testified that more than ninety hours spent preparing the answer brief was reasonable given the complexity and significance of the underlying issue. The appellate court found that the fee expert’s testimony fell short of meeting the necessary standard of demonstrating that the hours expended were necessary. The appellate court found that the billing records did not serve to cure the deficient testimony, as the billing records did not contain adequate details regarding the specific tasks performed. Rather the records contained entries such as “answer brief” which the appellate court found to be insufficient. The appellate court noted that neither the fee expert or counsel addressed how the prior research and briefing in the parallel litigation informed the work in the instant matter. The appellate court noted this was significant in that a court's attorney's fees award must exclude excessive, redundant, or otherwise unnecessary hours, citing Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Based upon the record failing to support the finding of the trial court, the 4th DCA remanded the case to the trial court for a reconsideration and redetermination of reasonable appellate attorney’s fees supported by competent substantial evidence. The 4th DCA reiterated that the fee expert’s focus on the quality of the work and the importance of the work to People’s Trust did not make up for the perceived deficiencies in the position that spending over ninety hours on a single answer brief was reasonable. Whether moving for attorney’s fees or challenging the amount of fees being sought by an opposing party, practitioners should be mindful of the evidence being used to support the claims being made. Parties should pay close attention to whether the hours being sought may be impacted by prior litigation either party may have engaged in. A party must be prepared to address how prior litigation efforts did or did not impact the amount of hours being claimed in current litigation. Lastly, billing records must be sufficiently detailed so as to support any potential future fee claim.

Thought Leadership

United State District Court for the Middle District of Florida finds Evidence of Replacement Cost Value is Admissible and Recoverable Even When Repairs Have Not Been Made

The plaintiff filed a claim for damage as a result of Hurricane Ian. It claimed damages were over $24 million, but the carrier accepted partial coverage and paid $8,307.49 for secondary components. The carrier found hurricane damage to the building, but it was below the insurance policy’s $3.6 million deductible. The plaintiff sued for breach of the insurance policy. The carrier argued in a motion for summary judgment that plaintiff could not recover replacement cost value (RCV) because the property repairs had not been effectuated. The policy provided for RCV, but only after the repairs were completed. The carrier argued that because the repairs were not completed, the plaintiff was not entitled to RCV damages. The plaintiff argued the carrier could not withhold the actual cost value (ACV) due, which was the main allegation of the lawsuit, then fault it for not making the repairs to unlock the RCV. The United States District Court for the Middle District of Florida rejected the carrier’s argument, finding that when an insurer allegedly breached the policy by withholding coverage, it could not hide behind a repair-contingent provision to block the insured from RCV damages at trial. The court found the issue to be whether the contractual language designed to preclude certain coverage until after repairs are completed barred an insured from seeking those damages at trial when repairs were not complete. The court noted the Eleventh Circuit had not resolved this issue and neither side pointed to a definitive answer from the Florida Supreme Court. The court reasoned that it must look to the Sixth District Court of Appeal (6th DCA), which is the court which would have heard this case if it was in state court. The court noted the 6th DCA recently addressed this issue in Universal Prop. & Cas. Ins. Co. v. Rodriguez, 427 So. 3d 676 (Fla. 6th DCA 2026). The Rodriguez Court found that a breach of contract action is designed to adjudicate not only whether the contract was breached, but also evaluate the damages incurred had the breach not occurred, which the Rodriguez court found to be recovery of the RCV. This court also noted basic Florida contract principles compelled the same result, as a material breach frees the nonbreaching party to suspend its own performance and can demand the full benefit of its bargain, including RCV damages. Finally, the court found the distinction between a full denial and partial denial did not compel a different result. It found the policy required the carrier to acknowledge coverage and pay ACV for all covered damages, and the failure to do that is a material breach, entitling the insured to all of the damages available under the contract, which included the RCV.

Result

$19 Million Medical Malpractice Verdict Overturned

In this medical malpractice case, the trial court vacated $10 million of a $19 million verdict in post-trial motions and the Superior Court of Pennsylvania vacated the remaining $9 million on appeal.

News

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Result

Statutory Employer Immunity Upheld

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Result

$1.09 Billion Products Liability Verdict Overturned

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Result

Federal Statute Declared Constitutional

In this products liability case, the Supreme Court of Pennsylvania reversed the Superior Court and upheld the constitutionality of the Protection of Lawful Commerce in Arms Act (PLCAA), which resulted in judgment as a matter of law for the defendant manufacturer.

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