Cases

Claimant’s attorney represented a claimant at a mediation that resulted in a joint stipulation whereby the employer/carrier agreed to pay certain benefits and jurisdiction was reserved

“for any attorney’s fees due and owing in conjunction with the claim.” No action was taken in regards to the claim for attorney’s fees for a period of approximately two years. Thereafter, employer/carrier filed a Motion to Dismiss all pending claims for attorney’s fees for failure to prosecute. See Section 440.25(4)(i), Florida Statutes. Following the filing of the Motion to Dismiss, claimant’s attorney filed a verified fee petition and affidavit seeking fees pursuant to the stipulation.

 

JCC erred in dismissing petition for attorney’s fees with prejudice relying on Section 440.25(4)(i), Florida Statutes. Less than one year passed between the time the claimant’s attorney filed his fee petition and the time a hearing was held to address it. The statutory provision related to failure to prosecute does not provide for a dismissal with prejudice. Finally, the stipulation as to retention of jurisdiction on the issues of attorney fees did not constitute a “petition” subject to the provisions of Section 440.25(4)(i), Florida Statutes, allowing for the dismissal.

 

The employer/carrier also argued that the claimant’s attorney was guilty of laches and therefore was precluded from pursuing the claim for attorney’s fees. Laches is a doctrine asserted as a defense, which requires proof of 1) lack of diligence by the party against whom the defense is being asserted, and 2) prejudice to the party asserting the defense. JCC erred in finding that the employer/carrier did not have the burden of proving the two elements of the laches defense and by not determining whether the employer/carrier overcame this burden.