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Court Hammers Builders

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By BRUCE E. LOREN

The Tampa Tribune

Published: December 20, 2008

As if contractors were not feeling enough pain from the downturn in the economy, in October the Florida Supreme Court gave construction companies yet another burden to overcome.

The high court interpreted two seemingly inconsistent parts of the 2003 amendment to the Worker's Compensation laws to allow a judge to award "reasonable" attorneys' fees to an employee's lawyer.

Previously, courts based the amount of attorneys' fees on a mathematical formula created as part of the Legislature's 2003 overhaul of the Worker's Compensation laws. It looks like construction employers and their insurance companies are back to the same standard used and abused prior to the 2003 amendments.

Employees exploited the maze in the hope of a lottery win. An entire industry of lawyers represented employees with questionable claims. Insurance companies settled these claims, regardless of whether they were legitimate, to avoid incurring attorneys' fees.

Despite the fact that the contractor knew best whether an employee's claim was questionable, the contractor was left to watch its insurance premium rise.

The Legislature's 2003 amendments, and particularly the formula for awarding attorneys' fees to an employee's attorney, led to significant reductions in Worker's Compensation premiums for construction employers.

Despite warnings from attorneys representing employees in Worker's Compensation lawsuits, there is no evidence that employees with legitimate injuries have been prevented from finding qualified lawyers to represent them. On the other hand, the 2003 amendment has deterred lawyers from representing employees with questionable claims.

The Legislature must act quickly to correct the court's concerns with the 2003 amendments, and return to the mathematical formula for awarding employee's attorneys fees.

Bruce E. Loren is a lawyer in West Palm Beach.

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