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Section 57.105, Florida Statute: What Is It, Why It Applies to Workers’ Compensation Cases, and How It Works

On Behalf of | Oct 19, 2012 | Blog, lawyer advice, Workers' Compensation

We have all, at this point, been forced to accept the fact that the 2009 amendment to Section 440.34 did in fact elimi­nate hourly fees. Whether that amendment was good or bad depends upon one’s perspective. The “industry perspective” would be that the amendment was good as there was a need to curb spurious litigation that was purely fee driven. Industry for many years com­plained that “shotgun claims” and small issues were needlessly increasing costs.The “Claimant perspective” would be that the amendment was bad as the old law encouraged thoughtful decision making by carriers by providing a penalty for ill-advised defenses.The Claimant’s perspective is that the new amendment has had the effect of promoting the use of stonewall defenses, no matter the evidence, as there is no longer a risk of fee exposure. I represent both claimants and carriers. I understand both perspectives and feel both perspectives are correct to a degree. No matter the perspective, stonewall defenses and meritless claims are bad. Both claims and defenses should always be based upon evidence, not conjecture. As members of the Bar by filing a pleading, whether it is a claim or defense, we are certifying the allegations to be non-spurious. Pleadings can generally be amended or refiled upon later discovered evidence; so, as members of the Bar we should not file “shotgun claims” or “shotgun defenses”. A claim or defense that has no foundation should subject the proponent of that claim or defense to the possibility of sanctions. One such sanction can be found in Section 57.105, Florida Statutes. The sanction is not, however, just an opportunity for claimant’s counsel to obtain hourly fees. It is available to either claimant or defense as it is intended to discourage useless litigation by both sides.

I have personally been convinced that Section 57.105 applies in workers’ compensation for several years as the First DCA in 2009 said as much. As I will explain in greater detail below, in May 2009, the First DCA, in Demedrano v. Labor Finder, 8 So.2d 498 (Fla 1st DCA 2009), found that the application of Section 57.104 was mandatory in workers’ compensation. Section 57.104 by its terms only applies to “actions” before a “court.” Sig­nificantly, Section 57.105 contains the exact same lan­guage. Either Demedrano was wrong, or Section 57.105 must also apply in workers’ compensation. Whether Demedrano was wrong, however, is for the First DCA or the Florida Supreme Court to decide. A JCC in not empowered to conclude Demedrano is wrong—a JCC must follow established precedent.Therefore, JCCs are required to follow precedent and should thus apply Sec­tion 57.105 in workers’ compensation matters.

Since Demedrano, to my knowledge, at the JCC level, Section 57.105 has been used to award hourly fees in a workers’ compensation case on only one occasion.1 In Sharon Crawley v. Rasmussen College/Hartford/ SRS, OJCC NO. 11-006475NPP (December 20, 2011), Judge Pitts bravely and correctly awarded such a fee. I was the Claimant’s counsel in that case. The date of accident was September 11, 2010. Ultimately, I was paid an hourly fee of just under $10,000 following litigation of a medical only issue. The issue in that case was a request for medical treatment which the employer/ carrier initially denied but later, the day before trial, stipulated was due.Thereafter we litigated a previously filed Section 57.105 motion using the procedure I have outlined at the end of this article. The employer/carrier eventually paid the fee award without an appeal so the Order did not result in appellate review of this issue. Nonetheless, as that case involves a matter of first im­pression, the ruling is both instructive and persuasive.

Many skeptics believe Section 57.105 cannot apply in workers’ compensation simply because it has never has previously been the basis for fees in workers’ compensa­tion. The rarity of the use of Section 57.105 in workers’ compensation should not be taken as proof that it does not apply. Section 57.105 has previously been applied only once by a JCC because prior to the July 1, 2009 amendment to Section 440.34 its application by the claimant’s bar was unnecessary. Prior to July 1, 2009 an employer/carrier that asserted a meritless defense would have to pay hourly fees when it lost. That fee exposure discouraged the use of baseless defenses and provided an appropriate penalty. The absence of that penalty since 2009 should surely not now be taken to permit the use of spurious defenses with impunity.

Ultimately the analysis of the applicability of Section 57.105 to workers’ compensation cases must begin with the actual language of the statute. I submit we must look carefully at the precise language and legislative history of both Section 57.104 and Section 57.105.These statute sections mirror one another in pertinent part, and for reasons indicated below, the similarities in their terminology cannot be ignored. Section 57.104 was en­acted in 1987, and has never been amended. Since its passage it has read as follows:

Section 57.104 – Computation of attorney’s fee.

In any action which attorney’s fees are to be determined or awarded by the Court, the Court shall consider, among other things, time and labor of any legal assistants who contributed non clerical, meaningful legal support to the matter involved and who are working under the supervision and direction of a licensed attorney engages in legal research, and case development or planning in relation to modifications or initial proceedings, services, processes, or applications, or who prepared or interprets legal documents or selects, compiles and uses technical information from references such as digests encyclopedias, or practice manuals and analyzes and follows procedural problems that involve independent decisions. (Emphasis added).

It is noteworthy that Section 57.104 only applies in “any action” wherein fees are to be awarded by a “Court.” By its language that statute would apparently have no application if the proceedings were not before a “Court.”

Section 57.105 was initially enacted in 1978 and over the years has been amended on several occasions. The most significant amendment was a wholesale revision of that Statute in 1999. In its current form, Section 57.105 in pertinent reads as follows:

Section 57.105 – Attorney’s fee; sanctions for raising unsupported claims or defenses; exceptions; service of motion; damages from delay of litigation.

  • 1) Upon the Court’s initiative or motion of any party, the Court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amount by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the Court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the Court or at any time before trial;
    • (a) was not supported by the material facts necessary to establish the claim or defense; or
    • (b) would not be supported by the application of then-existing law to those material facts.
  • 3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded:
    • (a) Under paragraph (1)(b) if the Court determines that the claim or defense was initially presented to the Court as a good faith argument or the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectations of success.
    • (b) Under paragraph (1)(a) or paragraph (1) (b) against the losing party’s attorney if he or she has acted in good faith, based on the representations of his or her client as the existence of those material facts.
  • 4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the Court unless, within 21 days after service of the motion, the challenged paper, claim defense, contention, allegation, or denial is not withdrawn or appropriately corrected.
  • 6) The provisions of this section are supplemental to other sanctions or remedies available under law or under Court rules. (Emphasis added)

Prior to 1999, Section 57.105 only applied in “civil proceedings.” In 1999 the Legislature expanded its ap­plication to any “action,” making it more closely mirror the language of Section 57.104. In 1999 the Legislature also lowered the standard from “frivolous” to it current form (not supported by material fact).2 Significantly, the legislature at that time added subparagraph (6), expanding the applicability of the section.

Scutiny of the 1999 amendments supports the prem­ise that Section 57.105 is applicable to workers’ com­pensation for a number of reasons. As is obvious from the above, in their current form both statues by their terms apply to “actions” in any “Court.” The fact that Section 57.104 only applies in “actions” before a “Court” is a critical point in understanding whether Section

57.105 also applies in workers’ compensation. Where the Legislature uses the exact same words in different statutory provisions it should be assumed that they were intended to have the same meaning. Maddox v. State, 923 So 2d 442 (Fla. 2006). The parallel language in these sequential statutes is important because while Section 57.105 has only recently been applied in work­ers’ compensation at the trial level, Section 57.104 has applied in workers’ compensation for many years.

The case that makes the comparison of these statutes important is Demedrano v. Labor Finders, 8 So.3d 498 (Fla. 1st DCA 2009). In Demadrano the First DCA was faced with the issue of whether Claimant’s counsel could charge paralegal fees to the client as a cost to be deducted out of the settlement. The First DCA found paralegal charges were not costs of Claimant’s counsel. In doing so the First DCA specifically found as follows:

Analysis of the attorney’s second argument, that paralegal time is a reimbursable cost, begins with a review of section 57.104, Florida Statutes. This section applies to workers’ compensation matters. See, Dayco Prods v. McLane, 690 So. 2d 656 (Fla. 1st DCA 2007).

Application of Section 57.104, Florida Statutes, is mandatory when attorney fees are awarded. See, Loper v. Allstate Ins. Co. 616 So. 2d 1055, 1061 (Fla. 1st DCA 1993) (holding the trial court “disregarded the mandatory language in Section 57.104” when it failed to consider the paralegal’s time as reflected in the af­fidavit filed by Loper’s attorney). Id at 500.

The First DCA in Demedrano was emphatic in its holding that the application of Section 57.104 in work­ers’ compensation matters was mandatory. Remember, Section 57.104 by its terms ONLY applies to “actions” before a “Court.” As Section 57.105 also applies to ac­tions before a court, in light of Demedrano, the applica­tion of Section 57.105 to workers’ compensation matters must be equally mandatory. In fact, based upon the clear mandate of Demedrano and the parallel language of Sections 57.104 and 57.105, it seems impossible to explain, from a statutory construction standpoint, how one statute would and one statute would not apply in workers’ compensation matters.

In this regard movants should remind the JCC that they must follow established precedent. JCCs cannot ignore existing authority even if they believe it to be wrong. The First DCA recently restated this fact in Matrix Employee Leasing v. Hadley 78 So. 3d 621 (Fla. 1st DCA 2012), wherein in it indicated:

JCC’s are bound by the decisions of this court interpreting the Workers’ Compensation Law unless and until the decision is overruled by the Florida Supreme Court or this court recedes from the decision en banc. See, Pardo v. State, 596 So.2d 665, 666 (Fla. 1992); Hoffman v. Jones, 280 So. 2d 431, 433-4 (Fla. 1983). Accordingly, a JCC lacks the authority to craft and apply a rule of law that directly contravenes this courts’ settled precedent. Id at 623

To ask a JCC to find that Section 57.105 is not appli­cable in workers’ compensation does just what Matrix warns against; it asks the JCC to ignore the reasoning behind Demedrano as well as the clear language of Florida Statute.

Possibly the most common objection that I have en­countered (and the one I find the most peculiar) to the application of Section 57.105 from both jurists and liti­gants is the contention that it does not apply in workers’ compensation because a JCC does not preside over a “Court.” That argument has always seemed odd to me in light of the fact the Evidence Code applies, each party may have counsel, we are not governed by Chapter 120, and Judges preside over the process.3 Ultimately, this argument fails as it simply cannot be reconciled with Demedrano. Section 57.104 only applies to “Courts” and yet its application in workers’ compensation is “manda­tory.” Once again, either Demedrano was wrongly decided or for purposes of Section 57.104 and Section 57.105, pro­ceedings before a JCC are proceedings before a “Court.”

Another common objection I have heard is that Sec­tion 57.105 is a “civil” statute, not a workers’ compen­sation statute. Curiously, I have heard this argument from many of  the same people who advocate use of the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions – a “civil rule” – to workers’ compensation matters.The most glaring problem with this argument is that under that logic Section 57.104 is also a “civil” stat­ute, and should likewise not apply.This notwithstanding, Demedrano says Section 57.104 does apply in workers’ compensation, and JCCs have been using Section 57.104 since at least 2009. Clearly its absence in Chapter 440 does not mean Section 57.105 can automatically be ig­nored by workers’ compensation practitioners.

The purpose and intent of Section 57.105 also sup­port its application to workers’ compensation. In this regard it is important to recognize that Section 57.105 has statewide application and has previously been the subject of numerous decisions in all of the Florida Dis­trict Courts of Appeal, including the First DCA. In fact, the First DCA has historically been one of the more as­sertive of the appellate courts regarding the application of Section 57.105. Since the First DCA will ultimately decide this issue their past interpretation of Section 57.105 is certainly instructive. The purpose of Section 57.105 in its current form was explained by the First DCA in Wendy’s of N.E.Fla., Inc. v. Vandergriff, 865 So. 2d 520, 523 (Fla. 1st DCA 2003), as follows:

As this Court noted in Bridgestone/Firestone, Inc., v. Herron, 828 So. 2d 414, 417 (Fla.1st DCA 2002), this Statute was amended in 1999 as part of the 1999 Tort Reform Act in an effort to reduce frivolous litigation and thereby to decrease the cost imposed on the civil justice system by broadening the remedies that were previously available. See, ch. 99.225, § 4, Laws of Fla. Unlike its predecessor, the 1999 version of the Statute no longer requires a party to show a complete absence of justifiable issue or fact or law, but instead allows recovery of fees for any claims or defenses that are unsupported.

The 1999 amendments to Section 57.105 clearly “low­ered the bar a party must overcome before becoming entitled to attorney fees.” Albritton v. Ferrera, 913 So. 2d 5 (Fla. 1st DCA 2005). In Long v. AvMed, 14 So.3d 1265, 1268 (Fla. 1st DCA 2009), the First DCA explained the applicable test for determining whether Section 57.105 fees are due as follows:

The determination of factual or legal merit can occur either when the claim or defense is first made, or later when the party discovers, or should have discovered, the claim or defense lacks factual or legal merit. See, Gopman v. Department of Education, 974 So.2d. 1208, 1210 (Fla. 1st DCA 2008). The test is simply whether the “party or his counsel knew or should have known, at the time of filing that the claims were not grounded in fact, or were not warranted by existing law or by reasonable argument for extension, modification, or reversal of existing law.” Id. Importantly, Section 57.105 “does not require a party seeking fees to show the complete absence of a justifiable issue of fact or law, but permits fees to be recovered for any claim or defense that is insufficiently supported.” Id.; see also, Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520, 523 (Fla. 1st DCA 2003).

As amended, the 1999 Statute authorizes “an award of attorney fees when a claim, pleading or other filing— as opposed to the entire case is without merit”. Walker v. Cash Register Auto Insurance, 946 So. 2d 66, 70 (1st DCA 2006). The statute “no longer applies only to an entire action, it now applies to any claim or defense”. Boca Burger v. Forum, 912 So. 2d 561, 570 (Fla. 2005). Many years ago, the First DCA indicated the penalty under Section 57.105 is intended to be “mandatory” whenever there is a violation.4 Couch v. Drew, 554 So.2d 1185 (Fla. 1st DCA 1989).

As the First DCA indicated in Vandergriff, the pur­pose of the 1999 amendments to Section 57.105 was to broaden the remedies that were previously available. In light of that purpose, further support for the application of Section 57.105 to workers’ compensation claims can be found in Section 57.105(6) which clearly broadens the applicability of the Section to other areas to which it previously did not apply. In Section 57.105(6) the Leg­islature indicated the provisions of Section 57.105 are “supplemental to other sanctions or remedies available under law or under court rules.” That subsection was added in 1999 when the applicability was expanded to “actions.” Webster’s Dictionary defines “supplemental” as“additional.” The Section 57.105“sanctions” is there­fore by its terms “supplemental” or in addition to the other remedies available under “law” or “court rules.”

Inasmuch as a plain reading of the statute indicates that it is supplemental to 440.34 & 440.32, there is nothing in Chapter 440 which specifically indicates Section 57.105 does not apply. There is likewise nothing in Section 57.105 that indicates it does not apply to workers’ compensation claims. The Legislature is presumed to have knowledge of Demedrano (which was decided in May 2007) when it amended Section 440.34 on July 1, 2009. As a result, from a statutory construction standpoint it would appear Section 57.105 was intended to be “supplemental” to other remedies, including those in Chapter 440.

Scrutiny of the various statutes supports the proposi­tion that they were in fact intended to work harmoni­ously The applicable statutes are analogue to a three-legged stool—each needing the other to support the platform. The first leg is Section 440.34. In the event of righteous disputes in which the parties dispute the effect of actual evidence, if the Claimant wins counsel receives fees as governed by Section 440.34. The sec­ond leg is Section 57.105 which applies when one side forces the other to litigate a claim or defense that has no evidentiary basis. The offending party and counsel are offered the chance to reverse course, but if they do not, a monetary sanction against the party and/or attorney is the result. The third leg is Section 440.32 which sanctions the lawyer for total frivolity. This is the most egregious offense and it carriers the harsh­est penalty. For frivolity there is a monetary sanction against the lawyer and a report to the Florida Bar. The three statutes together complete the whole and are stronger as a trilogy. In light of the above, I see no support for the proposition that Section 440.32 is somehow the exclusive available sanction. Section 440.32 may, in some cases, be an available remedy but nothing in Section 440.32 indicates it is the exclusive recourse in all instances.5 Section 440.32(2) indicates in part that:

If the Judge of Compensation Claims or any court having jurisdiction of proceedings in respect to any claims or defense under this section determines that the proceedings were maintained or continued frivolously, the cost of the proceedings, (including reasonable attorney’s fees) shall be assessed against the offending attorney. If a penalty is assessed under this subsection, a copy of the order assessing the penalty must be forwarded to the appropriate grievance committee acting under the jurisdiction of the Supreme Court.

That subsection was adopted in 1993 and has remained unchanged since its initial passage. In the approximately 19 years since its passage Section 440.32 has been used only rarely. This demonstrates how the “frivolity” stan­dard makes Section 440.32 difficult to apply. The Bar sanctions and putting 100% liability on the attorney also discourages its application by the tribunal. Section 57.105, on the other hand, since the 1999 amendments, has produced countless trial level awards and appellate decisions. For example, in just my law firm in the last two years we have received fees in civil cases for Section 57.105(1) violations on at least twenty occasions.

Recall that Section 57.105 was deliberately amended in 1999 to reduce its standard from frivolous (the stan­dard still in Section 440.32) to the current standard (lack of material fact) while simultaneously making it “supplemental” to other remedies at law. The Legisla­ture is presumed to pass subsequent enactments with full knowledge of the existing enactments that remain in force. Cannella v. Auto Owners Ins. Co., 801 So.2d 97 (Fla. 2001). It would therefore be logical that Sec-tion 57.105 was intended in 1999 to be “supplemental” to the sanction in Section 440.32 that was passed in 1993. An on-balance comparison of Section 57.105 and Section 440.32 shows they have different standards (lack of material fact v. frivolous), different sanctions, and different targeted wrongdoers. The First DCA has already indicted the frivolity standard (as found in Sec­tion 440.32) is a higher and different standard than the standard found in the current version of Section 57.105. See, Vandergriff. The nature of the sanction and who is liable also differs. The sanction under Section 57.105 is purely monetary while the more egregious action under Section 440.32 (total frivolity) is sanctionable by a monetary penalty and requires counsel to be reported to the Bar. Further, Section 440.32(2) does not clearly sanction a party. This may address the actions of an out-of-control counsel, but since the carrier frequently raises defenses before the retention of counsel Section 440.32 offers no real remedy against the out-of-control carrier. That scenario is, however, sanctioned by Sec­tion 57.105. In fact, the language of Section 440.32(2) suggests that it was always really directed at the out of control Claimant’s counsel, not carriers. Section 57.105 on the other hand is equally directed at actions by both sides. The distinction between these provisions demonstrates why it would be entirely logical for one to be supplemental to the other.

When filing a motion under Section 57.105 the mov­ant should compare the provisions of Section 57.105 to Rule 60Q-6.125. Remember, Section 57.105(6) indicates that section is supplemental to “court rules.” Therefore, they are not mutually exclusive of one another, nor does the existence of 60Q-6.125 (a rule) form a basis to find Section 57.105 (a state statute) is not applicable in a workers’ compensation adjudication. Rule 60Q-6.125 does provide for sanctions against “an attorney or unrepresented party” so in some cases it may by applicable. The problem with Rule 60Q-125 is that its meaning and application are unclear and largely untested. There have been very few instances of its use by JCCs. Section 57.105 on the other hand has been the subject of many trial and appellant decisions.

The purpose, meaning and application of Section 57.105 are abundantly clear. As Section 57.105 is “supplemental” to Rule 60Q-6.125, the movant should consider including Rule 60Q-6.125 as an alternate grounds for relief, as a safeguard against the JCC that doubts the applicability of Section 57.105 to workers’ compensation matters.The purpose of Section 57.105 is to “discourage baseless claims, stonewall defenses and sham appeals” by sanctioning those responsible for un­necessary litigation costs. City of Largo v. LaGrade, 650 So.2d 178 (Fla. 2nd DCA 1995) and Visoly v. Security Pacific, 768 So.2d 482 (Fla 3rd DCA 2000). That goal surely does and must apply in workers’ compensation litigation just as it would in other actions!

A corollary to that purpose is the requirement that counsel (both carrier and claimant) honestly and accu­rately represent the facts to the JCC. We should all be mindful that as members of the Bar we are obligated to be candid with the tribunal and not assert or perpetu­ate defenses or claims that are known to be lacking of any proof. Zealous representation does not justify the filing of meritless claims or stonewall defenses. Further, we cannot assert claims or defenses with the hope of someday getting proof—nor can we ethically assist our client by standing idly by while our client abuses the system. As members of the Bar we must withdraw when our client (employer, carrier or claimant) insists we do something unethical. In Boca Burger v. Forum, 912 So.2d 561 (Fla. 2005), the Florida Supreme Court, when faced with an appellate use of Section 57.105, discussed the tough ethical obligations of counsel. In Boca Burger the Florida Supreme Court reminded us of our ethical obligation, when it indicated:

Contrary to petitioner’s arguments, allowing sanctions against appellees or their counsel for defending indefensible orders require the quintessentially professional act of admitting defeat when there is no chance of victory, or when victory will have been obtained at the price of integrity and truth. “While counsel does have an obligation to be faithful to his client’s lawful objectives, that obligation cannot be used to justify unprofessional conduct by elevating the perceived duty to zealously represent over all other duties.” Lingle v. Dion, 776 So.2d 1073, 1078 (Fla. 4th DCA 2001). (alterations in original) (quoting Visoly v. Sec. Pac. Credit Corp., 768 So.2d 482, 492 (Fla. 3rd DCA 2000). Section 57.105, as well as the Florida Bar rules of professional conduct and even the oath of admission to the Florida Bar, all warn—if any warning were needed— that counsel must be governed by considerations other than mere zealous advocacy for the client. See Section 57.105, Fla. Statute (2002) (allowing a court to sanction the losing party and losing party’s attorney if the court finds the losing party’s attorney knew or should have known that a claim or defense was not supported by the application of then existing law), R. Regulating Fla. Bar 4-3.3(a)(1) (“A lawyer shall not knowingly make a false statement of material fact or law to a tribunal”.) Oath of Admission, Fl. Bar J., Sept. 2004, at 2 (“I will employ for the purposes of maintaining the cause confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by an artifice or false statement of fact or law).

Id at 571. Sadly, we have all seen lawyers on both sides “forget” that our system of jurisprudence requires ethics even if it is at the expense of victory. The ends do not justify the means! That is why Section 57.105 imposes a potential penalty against the lawyer. The Supreme Court, in Boca Burger, explained the importance of the “imposing burden” of ethics in litigation as follows:

The heart of all legal ethics is in the lawyer’s duty of candor to a tribunal. It is an exacting duty with an imposing burden. Unlike many provisions of the disciplinary rules, which rely on the court or an opposing lawyer for their invocation, the duty of candor depends on self-regulation; every lawyer must spontaneously disclose contrary authority to a tribunal. It is counter-intuitive, cutting against the lawyer’s principal role as an advocate. It also operates most inconveniently-that is, when victory seems within grasp. But it is precisely because of these things that the duty is so necessary. Although we have an adversary system of justice, it is one founded on the rule of law. Simply because our system is adversarial does not make it unconcerned with outcomes. Might does not make right, at least not in the courtroom. We do not accept the notion that outcomes should depend on who is the most powerful, most eloquent, best dressed, most devious and most persistent with the last work-or, for that matter, who is able to misdirect a Judge. American civil justice is so designed that established rules of law will be applied and enforced to insure that justice be rightly done.

Id at 573. That same ethical obligation obviously applies at the trial level in workers’ compensation. No attorney should assert a claim or defense they know to be groundless. Nor should any attorney advocate a claim or defense asserted by the client which they know to be spurious. Whenever a lawyer continues to act as the lawyer for a party doing such, they become complicit in the act.To say that Section 57.105 does not apply in workers’ compensation would be equivalent to condoning the use of such groundless claims or de­fenses as long as they were not “frivolous” under Section

440.32. That is absurd! Litigation on either side that is not supported by material facts is precisely what the legislature sought to discourage by Section 57.105. If the frivolity standard was adequate to discourage such conduct, the legislature would not have passed the 1999 amendments to Section 57.105.

Any analysis of why Section 57.105 applies would be incomplete without an explanation of how Section 57.105 motions should be adjudicated. In civil litigation Section 57.105 motions are common so we have learned how they should be addressed. Based upon the civil litigation model, when faced with a motion under Sec­tion 57.105, the parties and the Court should generally follow a sequential approach, as follows:

  1. Following the filing of a claim or assertion of a defense, a motion must be served on the attorney (not the Court) giving them a chance to withdraw the claim or defense. This is The Safe Harbor Rule. Maxwell Bldg. v. Euro Concepts, 874 So.2d 709 (Fla. 4th DCA 2004). The purpose of Section 57.105 is not to spring a trap, but is instead intended to be a sanction against ill-advised claims or defenses. The Safe Harbor Rule gives the offending party a last op­portunity to reconsider the wisdom of their position. No fees attach if the claim or defense is withdrawn prior to the expiration of the Safe Harbor time period.
  2. The motion can not be filed with DOAH (or the court) until the 21 day Safe Harbor has expired. The Safe Harbor requirement will be strictly construed. Mont­gomery v. Larmayeux, 14 So.3d 1067 (Fla. 4th DCA 2009). For instance, a letter (instead of a motion) is not enough. Anchor Towing v. Florida DOT, 10 So.3d 670 (Fla. 3rd DCA 2009).
  3. Once the 21 day period has expired the motion CAN be filed with DOAH (or the court). It is the original service and notice to counsel that is key. The motion for fees need not be actually filed with DOAH until later. See, Yakovonis v. Dolphin Petroluem, 934 So.2d 615 (Fla. 4th DCA 2006); Grae F. v. Danes & Moore Group, 857 So.2d 257 (Fla. 2nd DCA 2003). If the JCC in your area is summarily denying these mo­tions due to a belief Section 57.105 is not applicable, consideration should be given to hold off filing the Motion with DOAH until the issue is ripe or closer to conclusion.
  4. Whether or not actually filed with DOAH, no immedi­ate action on the motion is necessary or appropriate as the proof/factual basis of the claim or defense remains in dispute between the parties.
  5. If the claim or defense is later withdrawn, dismissed or rejected by the Court, the motion will then be ripe for adjudication. At that time the motion must be filed and an evidentiary hearing on the Section 57.105 motion hearing should be held. Such a hear­ing can be “before the case is concluded,” Bridgestone v. Herron, 828 So.2d 414 (Fla. 1st DCA 2002), but is commonly done at the end. This evidentiary hearing can be done in one hearing but (in my opinion) is best done in two parts.
  6. The first evidentiary hearing concerns whether Sec­tion 57.105 was violated. This requires a review of only the evidence as it existed at the time of dismissal or adjudication. It need only be shown that the claim or defense was “insufficiently supported.” Wendys v. Vandergraff, 865 So.2d 820 (Fla. 1st DCA 2003). The time for fee purposes would go back to when the claim or defense was asserted, NOT when the motion was filed. Wood v. Haak, 54 So.3d 1082 (Fla 4th DCA 2011). Time spent litigating entitlement is recoverable as part of the fee. Yakonis v. Dolphin Petroleum, 934 So.2d 615 (Fla. 4th DCA 2006). If the fee is denied, the order is at that time appealable by the movant. Whether the JCC feels Section 57.105 applies in workers’ compensation  could also be ad­dressed at that stage.
  7. If the Court finds a Section 57.105 fee is due the Order is not final until the amount is decided.There­fore, the tribunal should conduct a second hearing to determine the amount and whether counsel is re­sponsible for part of the fee. See, Tobin v. Bursch, 997 So.2d 745 (Fla. 3rd DCA 2008).Time spent litigating amount is not recoverable. Yakonis
  8. Counsel is liable for a maximum of 50% of the fee if the attorney knew or should have known the claim or defense was not supported by material fact. Counsel is entitled to a full hearing on this issue.The determi­nation of good faith is one for the tribunal to resolve. Yang Enterprises v. Yeargalis, 988 So.2d 1180 (Fla. 1st DCA 2008). If the attorney acted in good faith based upon the client’s representation, the losing party pays 100% of the fee. When disputed, counsel should carefully consider whether a conflict with the client exists. In order to defend their actions, communications between counsel and the client will generally have to be disclosed so the possibility of a conflict must be considered
  9. If a fee is awarded, upon rendition of the second Order the matter has been finally adjudicated and is ripe for an appeal by the losing party. Ferdie v. Issacson, 8 So.3d 1246 (Fla. 4th DCA 2009). The standard of review is abuse of discretion. Boca Burger v. Forum, 912 So.2d 561 (Fla. 2005).

In summary, the case law and statutes support the proposition that Section 57.105 applies in workers’ com­pensation. This is not just a fee opportunity for claim­ant’s counsel! It is a warning. It is an equal-opportunity sanction available to both sides. Claimants and their counsel should be mindful to file claims that have a basis when filed. Carriers and their counsel should not stonewall and should only assert defenses based upon evidence that they have—not what they think they may later be able to prove. Both sides should be mindful that filing a claim or defense attests to the tribunal that we, as members of the Bar, have a good faith basis to believe the claim or defense is supported by actual evidence. We must take that ethical obligation seriously. To fail to do this is bad for all, and as a result should subject the wrongdoer to the risk of a Section 57.105 sanction.

E. Taylor Davidson, Jr., was born Louisville, Ken­tucky, on December 20, 1960. He was admitted to the Florida Bar, 1986, Florida; 1987, U.S. District Court, Middle District of Florida, 1988, U.S. Court of Appeals (11th Circuit); Board Certified in Workers’ Compensa­tion (1998 to present); Board Certified in Civil Trial Law (2000 to present); Certified Circuit Civil Mediator (1995). Education: Florida State University (B.S., cum laude, 1983); Tulane University (J.D., cum laude, 1986). CONCENTRATION: Workers’ Compensation; Insur­ance Defense; Trial Practice; Personal Injury; Wrongful Death; Mediation. Email: [email protected] 


  1. Section 57.105 has been previously applied by the 1st DCA in workers’ compensation at the appellate level. Sharka v. Lennar Homes, 29 So 3d 1170 (Fla 1st DCA 2010); Maradriaga v. 7-Eleven, 35 So 3d 109 (Fla. 1st DCA 2010).
  2. The frivolity standard was difficult to prove and made it only rarely applicable. Frivolity often seemed to be based upon the pos­sibility of an argument, not the existence of actual evidence. Prior to 199, to be frivolous, the claim had to be completely untenable and / or devoid of even arguable substance. Wall v. Dept of Transportation, 455 So. 2d 1138 (Fla. 2d DCA 1984). The vague nature of that test explained the infrequency of its use and was surely a driving force in the 1999 amendment.
  3. If the APA applied Section 57.105 would be applicable since Sec­tion 57.105(5) indicates it applies to actions before an Administrative Law Judge.
  4. Compare the “mandatory” language of the 1st DCA when Apply­ing Section 57.104 in Demdrano, with the “mandatory” language of 1st DCA in Couch regarding Section 57.105.
  5. Judge Pitts in Crawley addressed this issue at length and in the Compensation Order and found as follows:
    1. Secondly, 57.105(1) provides a remedy not available to a JCC considering an award of sanctions under the provisions of 440.32,(2); a remedy which is of critical importance. Specifically, the provisions of 440.32(2) limit the application of any sanctions against an attorney only. Whereas, the provisions of 57.105(3)(b) allow for the imposition of sanctions against a party rather than an attorney if the attorney acted in good faith based upon the presentations of his or her client as to the existence of material facts to support the claim or defense.
    2. Under the provisions of 440.32(2), a JCC must limit sanctions solely against the attorney regardless of whether the attorney acted in good faith based upon the presentations of his or her client as the existence of material facts to support the claim or defense.Additionally, under the provision of 440.32(2), a JCC must report the offending attorney to the Florida Bar.This places a JCC in an untenable position of being requested to award sanctions against an attorney (and reporting the attorney to the Florida Bar) where it was the client, and not the attorney, who has insisted upon pursuing the unfounded claim or defense. This is especially potentially applicable to situations involving attorneys who are employed as staff counsel by an insurance company; in which event the employer is also the client.
    3. Finally, the standard for determining whether to impose sanctions under 57.105 is different than the standard to impose sanctions under 440.32(2). Specifically, under 57.105, a prevailing party seeking to invoke this provision does not have to establish a complete absence of justifiable issue of fact or law, Long v.AvMed, Inc. 14 So. 3d 1264 (Fla. 1st DCA, 2009) or that the claim was frivolous. Martin County Conservation Alliance v. Martin County, 1D09-4956(Fla. 1st DCA, 2011). Rather, such party may recover fees for any claim or defense that is insufficiently supported. See Gopman v. Dept. of Education, 974 So. 2d 1208 (Fla. 1st DCA 2008). Whereas under 440.32(2), a prevailing party must establish that the claim or defense “were maintained or continued frivolously”.