Jeffrey P. Gale, P.A. // Right-Wing Propaganda Machine Wasting No Time Condemning the Florida Supreme Court’s Castellanos v. Next Door Company Decision

scales of justiceOn April 28, 2016, the Florida Supreme Court, in Castellanos v. Next Door Company, righted a wrong thirteen years in the making. The court decided that the due process edicts embodied in the Federal and Florida constitutions mandate that judges who decide workers’ compensation cases be allowed to award reasonable attorney’s fees to claimants attorneys. (Pre-Castellanos, judges of workers’ compensation claims (JCC) were prohibited from awarding reasonable fees.)
Not surprisingly, the right-wing propaganda machine quickly went on the attack. This morning I awoke to an article, Workers-comp rates could jump in Florida, published in my local newspaper, the Miami Herald, containing some of the falsehoods we can expect to hear. I sent an email to the author of the article addressing the biggest of those falsehoods.
Dear Mr. Saunders:
This morning I read your article of the above title in the Miami Herald. I feel the need to respond to a quote in the article from Associated Industries CEO Tom Feeney, the highly controversial right-wing Republican partisan notorious for his role in the 2000 presidential election fiasco. According to Feeney, the Supreme Court’s opinion permits “unbridled hourly rate attorney fees.” This is complete and utter hogwash. If you read the subject opinion, Castellanos v. Next Door Company, and the workers’ compensation attorney’s fee statute (F.S. 440.34), you will see that the hourly attorney fee rate will be anything but “unbridled” as a result of the Castellanos decision.

In 2003, Jeb Bush and the Republican-controlled legislature jammed through legislation which they believed prevented workers’ compensation judges from awarding reasonable attorney’s fees to claimant attorneys. The idea was to keep injured workers from being able to fight for benefits.

The law was challenged on constitutional grounds. Five years later the Florida Supreme Court, in Emma Murray v. Mariner Health, reached a decision in one of those challenges. However, rather than deciding the case on constitutional grounds (e.g., due process; access to courts), the court engaged in statutory interpretation. It concluded that because Florida Statute 440.34 contained the word “reasonable,” the statute allowed workers’ compensation judges to award reasonable fees. (Read Emma Murray for a fuller understanding of the court’s reasoning. The bottom line is that Jeb Bush & Co. made a drafting error. Their desire to put the screws to injured workers would have to wait for another day.)

They did not have long to wait. Less than six months later, the 2009 Florida Legislature, still Republican-controlled, solved the problem. The solution? Simply remove the pesky word “reasonable” from 440.34. To those in the know, the Legislature’s action is referred to as “the Emma Murray fix.” No longer could a judge of compensation claims award a reasonable fee to an injured worker’s lawyer. The “fix” laid the groundwork for Castellanos v. Next Door Company.

Every current workers’ compensation judge in the state of Florida has been appointed by a Republican governor. Most are exceedingly “conservative,” some even more so. The notion that any of these judges, and others appointed in the future, will allow “unbridled hourly rate attorney fees” is offensive to these judges and the judicial system. In fact, Castellanos prohibits them from doing so. Castellanos requires judges to engage in a thorough and painstaking process, in accordance with longstanding legal principles, to determine a reasonable fee. There is nothing unbridled about the process.

I am guessing that Feeney didn’t explain this to you. I’m also guessing that he failed to mention that employers and workers’ compensation insurance companies can avoid having to pay attorney’s fees merely by engaging in proper claims handling. Read Castellanos and 400.34. It’s there in black and white.

Feel free to show Feeney this email and ask for his opinions. Better yet, ask him which of us is telling the truth. I’ll be watching for your article reporting on that conversation.

Yours truly,

Jeffrey P. Gale


Contact us toll free at 866-785-GALE or by email to learn your legal rights.Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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