News Service of Florida - May 30th, 2009
Without any fanfare, Gov. Charlie Crist on Friday signed legislation sought by the business community that will restore a statutory fee schedule for plaintiffs lawyers in workers compensation cases.
A previous fee schedule that effectively limited how much lawyers can earn for representing injured workers was thrown out by the state Supreme Court last year, leading to widespread fears in the business community that years of declines in workers comp insurance premiums would be reversed.
And in fact, it appeared that rates were headed back up – the state Office of Insurance Regulation had already approved one workers comp premium increase citing the Supreme Court ruling last year in Murray v. Mariner. Commissioner Kevin McCarty ordered a 6.4 percent increase in workers’ compensation rates in the wake of the ruling, though that can be revisited considering the new law.
Opponents of the bill (HB 903) warned during the session that simply restoring the cap and removing statutory language that had been in the previous law that required workers comp fees be “reasonable,” simply invited another court challenge. The Supreme Court said in Murray that the law was inconsistent because it limited attorneys fees to what the fee schedule allowed, yet required they be “reasonable,” and the two things were sometime incompatible. In the Murray case, the lawyer collected about $8 an hour under the fee schedule.
The workers compensation lawyer fee cap was one of several reforms made by lawmakers in 2003 to try to address high premiums. And in addition to a crackdown on fraud, it worked, as premiums dropped fairly steeply over the last few years.
The bill, sponsored by Rep. Anitere Flores, R-Miami, in the House and Sen. Garrett Richter, R-Naples in the Senate, was sought by nearly every large and small business group.
And they applauded the governor’s move Friday.
“With unemployment in Florida at 9.6 percent, Florida’s employers need these resources to hire more employees and assist them in transitioning through these tough economic times,” the Florida Chamber said in a statement. “This legislation ensures injured workers receive more in benefits than plaintiffs’ trial lawyers do in fees. The signing of this critical legislation is a victory for Florida’s employers, especially small businesses, who cannot afford higher costs simply to increase attorneys’ fees.”
Associated Industries of Florida president Barney Bishop said the new law would “safeguard the system from reaching the crisis point it did several years ago as a result of unbridled litigation.”
But the bill was staunchly opposed by trial lawyers, who said it will deprive injured workers of representation in some cases. In cases that are expensive to try, there will be no incentive for a lawyer to take the case, the trial bar said. The measure was also opposed by rank and file firefighters and police, who say they’re among those most likely to need to file workers comp claims.
Plaintiffs attorney Paul Anderson, who worked on the issue for the Florida Justice Association, said Friday that taxpayers will pick up the cost of those who are injured, because if they can’t collect workers comp because they can’t find an attorney to take their case, they’ll get treatment through public hospitals and Medicaid and use other public resources.
“They’ve passed the burden from the insurance industry to the taxpayer,” said Anderson, who said the new law will almost certainly be challenged again in the courts.
“Of course there will be a challenge,” Anderson said. “The bill is unconstitutional. There will be another Emma Murray in some shape or form, and we’ll be back at this drawing board.”
The bill passed easily early on in the session in the House, where it was a top priority of Speaker Larry Cretul, R-Ocala. But it was among the last measures taken up this session by the Senate and passed narrowly, 22-16. Many senators said they eventually voted for the bill because of the economy – fearing that if comp rates went up, people would get laid off.
