Florida’s 30-Day Grace Period to Avoid Attorney’s Fees is Not Extended for Holidays and Weekends
Florida’s Rule 60Q-6.109 of the state’s Rules of Procedure for Workers’ Compensation Adjudications provides that if an act required or allowed to be done falls on a holiday or weekend day, performance of the act may be satisfied if done on the next regular working day. In Zenith Ins. Co. v. Cruz, 2020 Fla. App. LEXIS 1743 (1st DCA, Feb. 12, 2020), a state appellate court held the rule does not extend the “grace” period provided in § 440.34(3)(b), Fla. Stat., pursuant to which an employer/carrier (E/C) can avoid the imposition of attorney fees if the E/C either accepts the claim or provides the requested benefits within 30 days of its receipt of the petition for benefits. Thus, where the 30-day grace period expired on a Saturday, and the E/C accepted the claim the following Monday (and issued a check for indemnity benefits that same day), the JCC could nevertheless award the claimant E/C-paid attorney’s fees.
Background
Claimant filed a petition for benefits via the OJCC’s electronic filing portal (e-JCC) after five o’clock p.m. on August 22, 2018. The E/C acknowledged receipt after six that night, and the parties agreed that the petition was deemed filed the next day, on August 23rd, and that the thirtieth day after that was September 22, 2018 — a Saturday. The E/C filed a response denying the claim on August 29th, but on Monday, September 24th, the E/C filed another response in which the E/C rescinded the denial, agreed to provide all requested benefits, and denied fee entitlement. The E/C also issued a check for indemnity benefits that same day.
Claimant sought attorney’s fees pursuant to § 440.34(3)(b), Fla. Stat., and the E/C opposed the petition, indicating it had accepted the claim within the 30-day period required by statute. asserting entitlement to attorney’s fees because she filed a petition, the E/C filed a response to the petition denying the claim, and then accepted the claim and provided all requested benefits.
Consecutive/Calendar Days
The JCC found that the 30 days referenced in § 440.34(3)(b) meant “consecutive” or “calendar” days and that the rule, being procedural or administrative, could not enlarge, modify, or contravene the statute’s provisions.
Appellate Court Reasoning
Initially, the court noted that the parties conceded, and the court agreed, that § 440.34(3)(b) created a substantive right to an E/C-paid attorney’s fee if three prerequisites are satisfied:
- Claimant files a petition for benefits;
- The E/C deny the petition, and
- The claimant retains an attorney who successfully prosecutes the petition.
The court added that prior to 2002, satisfying those three prerequisites was alone sufficient for fee attachment to occur. That year, however, the Legislature amended the statute by adding a provision according to which, even if these prerequisites are satisfied, attorney’s fees do not attach “until 30 days after the date the carrier or employer, if self-insured, receives the petition.”
Quoting Sansone v. Crum, 201 So. 3d 1289, 1291 (Fla. 1st DCA 2016), the court said:
Attorney’s fees under section 440.34(3)(b) require the “successful prosecution of the petition,” but fees cannot attach until thirty days after the employer receives the petition …. Therefore, an award under section 440.34(3)(b) requires some part of the ‘successful prosecution’ to occur after thirty days. In other words, if the petition fully succeeds before the thirty days run, fees do not attach. (citations omitted).
§ 440.34(3)(b) Does Not Specify “Business Days”
Citing Hinzman v. Winter Haven Facility Operations, LLC, 109 So. 3d 256 (Fla. 1st DCA 2013), the court stressed that § 440.34(3)(b) did not specify “business days” and should, therefore, be read to mean “calendar days.” The court said this was all the more compelling since here the time limit was 30 days, whereas in Hinzman, it had been only five. Although the filing of a petition was, of course, a prerequisite for fee entitlement, it was the E/C’s receipt of that petition that not only started the clock on the 30-day countdown, but also provided the E/C with notice of the deadline and the need to act accordingly if it wished to avoid fee liability.
The court concluded that the substantive right that § 440.34(3)(b) bestowed was one of fee entitlement (the exception to the rule), not fee avoidance (which was the rule), and unless the Legislature specified that the time period that must expire before a right attaches is to be calculated using “business” rather than “calendar” days, or is otherwise subject to a procedural rule that extendedthat period, the rule could not operate to do so. For those reasons, the court affirmed the JCC’s award of fee entitlement.