Thursday, February 23, 2017

More on Prevailing Party Costs in Florida

A recent case from the Florida First District Court of Appeal addressed a constitutional challenge to the prevailing party costs provisions of Florida workers' compensation. In Govea v. Starboard Cruise Service, Inc., the court denied the challenge, and provided some pointers on constitutional challenges. In Appellate Lessons, Explanation, Contrition, Persistence, I noted that "lawyers rely upon rulings in one case, with an expectation that other similar cases will be decided in a similar manner." In other words, it is practical and efficient to learn from the cases others have prosecuted or defended.

In Govea, the recovering worker sought benefits, and did not prevail. The Employer/Carrier sought "prevailing party costs" pursuant to "subsection 440.34(3), Florida Statutes 2 (2011)," which the Judge of Compensation Claims awarded. The District Court affirmed. There was little discussion from the Court of the particular costs in this case. The discussion was centered instead upon arguments that the costs statute is unconstitutional.

The Court reminded three important issues with challenging the constitutionality of workers' compensation cases.

First, Judges of Compensation Claims (JCC) "do not have the authority to address constitutional issues."

Second, constitutional "issues may be raised for the first time on appeal, without having been preserved below.”

And third, that parties before a JCC, seeking to later make such a challenge, "may build a record so that constitutional challenge might be made on appeal."

This is challenging to some lawyers. Knowing the Judge of Compensation Claims cannot rule on constitutional issues, they refrain from (or forget) introducing evidence on those issues. But, they have the ability to make arguments and present evidence at trial, on subjects that a JCC cannot and will not decide. Trial is an opportunity to build the record of facts and evidence that a lawyer might later use "for the first time on appeal," to seek a constitutional decision. This is a critical point for attorneys to remember.

The recovering worker in Govea argued on appeal that the "imposition of prevailing party costs" is "unconstitutional as a denial to access to courts." The Court reviewed previous decisions regarding access to courts, challenges and mentioned some critical points.

First, someone must have "standing" to pursue any particular legal challenge. Standing means that the person or party has a significant interest in the outcome of the case. I explain this to students as a direct and personal harm that will occur from the application of some law or regulation. The Court in Govea explained that the challenging party "must demonstrate ‘an injury which is both real and immediate, not conjectural or hypothetical.” (Citations omitted).

The court noted that a similar challenge to the prevailing costs provision had been raised in 2011 by another recovering worker, Robert Punsky. In that case, the recovering worker argued that "it will be ‘a rare injured worker’ who can afford to pay the costs of litigation when his claim fails.” This urges a standard of "affordability." Should people be excused from financial implications if they feel they cannot afford to pay?

The logic of this argument is reasonably clear: if a law provides for someone without resources to face liability, then that law is unconstitutional. But the Court in Punsky did not accept that argument. Instead, the Punsky Court concluded that the record (the evidence presented at trial to be used "for the first time on appeal") did not support that the award of prevailing party costs is "an injury which is both real and immediate, not conjectural or hypothetical.”

In Govea, the Court concluded the same. It noted the recovering worker's argument that "the requirement of claimant-paid costs has a potential chilling effect on the pursuit of claims." The Court noted that the recovering worker "offers no support of a real and immediate injury." As such, the Court concluded that the recovering worker "failed to establish a real and immediate injury resulting in a denial of access to courts," and thus his challenge was denied.

The result is that Govea is liable for the prevailing party costs pursuant to "subsection 440.34(3), Florida Statutes 2 (2011)." According to the trial order of April 20, 2016, this amounts to $3,170.00.

Back in 2012, David DePaolo concluded that taxation of prevailing party costs should be one-sided. He advocated a test of "ability to pay." If the E/C lost a case, it should pay costs to the recovering worker. If the recovering worker lost, then each party should bear its own costs.

Never one to sugar coat anything, David titled his piece FL Taxing Costs - Irrational at Best, Unjust at Worst. His logic was fundamentally that requiring workers' compensation claimants to be responsible for the costs of others created an "inequity" by "pitting individuals of limited means against much larger litigants with much greater resources." He concluded that this is "something that workers' compensation laws were originally intended to rectify."

I had a long conversation with David about this post, and frankly it seems like yesterday (I still struggle to accept that he has passed from this world). His point was that subjective fairness should be somehow measured and determined, and that regulations and statutes should ensure fairness. I conceded his point. Years later, I would realize that a great portion of our individual struggles and disagreements come down to definitions, and I penned The Devil is in the Definitions. There rests an area in which there remains disagreement and discontent. What is "fair," and how is that determined.

In some measure, "fair" may not be the point. Perhaps because what is "fair" is often subjective. It depends, it has been said in an old idiom, on "whose ox is being gored." Should liability for costs be dependent upon the ability to pay? Should it matter whether the a particular recovering worker that does not prevail has or lacks resources? In deciding "fairness" should it matter that one side is "larger" and has "much greater resources," regardless of the worker's ability or inability to pay? Should it matter that those "larger" entity resources are accumulated by collecting premiums that contribute to cost of most of the goods and services we all consume?

The real point may not be whether laws are subjectively "fair," but whether laws are permissible within the constitutional construct that we have defined for ourselves. It is worth stressing that no one person made up our laws in this country (for that we are truly blessed). Instead our laws were made up by great gatherings of persons in convention and congress, each hopefully trying to do what they believed was right. Whether it is the content of our constitutions (there is the U.S. Constitution, but each state has one also) or our statutes and codes, our laws come essentially from ourselves.

Certainly, we all likely perceive some particular laws which we might wish were different, or with which we individually disagree. We all likely perceive some law as "unfair" from our own subjective perspective. But, those laws and constitutions embody the collective wisdom of democracy. In the end, our structure is built around elected officials striving for their perception of fairness in our laws, and we ask our courts to measure those laws against the protections and limitations in our constitutions.

The court outcomes may be easy to accept or may challenge our sensibilities. But, perhaps that is more related to our personal values and our own perceptions of "fair." Those perceptions and beliefs may parallel the beliefs of others, but may also contradict others. In the end, perhaps it is impractical to hope that all of us would agree 100% on anything? But, the lessons of Govea are worthy of review. It is worthwhile to understand the method for making a record, and presenting a constitutional challenge. Doing it well does not mean one will prevail, but doing it well will likely enhance one's chances.

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