Opinion
CASE NO. 1D15-4815
11-14-2016
CELIA LAMPERT AND CURT LAMPERT, AS PARENTS AND NATURAL GUARDIANS OF T.L., Appellants, v. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, Appellee.
David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa, for Appellant. David W. Black and Marc A. Silverman of Frank, Weinberg & Black, P.L., Plantation, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED An appeal from the Division of Administrative Hearings.
Barbara J. Staros, Administrative Law Judge. David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa, for Appellant. David W. Black and Marc A. Silverman of Frank, Weinberg & Black, P.L., Plantation, for Appellee. PER CURIAM.
This case is an appeal from an Administrative Law Judge's (ALJ's) final order denying Appellants' motion for attorneys' fees and costs in a Florida Birth-Related Neurological Injury Compensation Association (NICA) related dispute. We reverse and remand for the entry of an order granting fees and costs.
Background
Appellants are the parents of a son born with a birth-related neurological injury as defined by § 766.302(2), Florida Statutes, who was admitted into the NICA program on November 10, 1997. In 2006, over 100 families (including Appellants) filed a class action law suit against NICA, alleging that NICA was unlawfully underpaying or refusing to pay parents and guardians for custodial care. The lawsuit resulted in a settlement agreement, approved in 2012, that established a process for class members to submit claims to recover back-pay and future pay for custodial care benefits from NICA. Under this process, a class member who disagrees with NICA's assessment may file a petition with the Florida Division of Administrative Hearings (DOAH).
On January 4, 2013, Appellants submitted a claim to NICA for back-pay and future pay for custodial care benefits. NICA agreed to pay Appellants for future custodial benefits in the amount of 12 hours per day, whereas Appellants sought pay for 16 hours per day. Appellants filed a petition with DOAH to resolve the dispute and requested attorneys' fees and costs. Ultimately, in 2015, the ALJ issued a final order siding with NICA and awarding custodial care benefits of 12 hours per day from December 17, 2012, forward. The ALJ then denied Appellants' motion for attorneys' fees and costs, which is the subject of this appeal.
Analysis
This case involves the interpretation of the NICA-related attorneys' fee statute, an issue of law that we consider de novo. See Nagy v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 813 So. 2d 155, 159 (Fla. 4th DCA 2002). Florida law sets forth the process that claimants must follow when seeking an award from NICA. See §§ 766.301-766.316, Florida Statutes. Part of the law addresses expenses, including attorneys' fees and costs, incurred by filers who bring NICA claims. It says:
(1) Upon determining that an infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth, the administrative law judge shall make an award providing compensation for the following items relative to such injury:
§ 766.31, Fla. Stat. The subsection further requires that "future expenses be paid as incurred." § 766.31(2), Fla. Stat.
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(c) Reasonable expenses incurred in connection with the filing of a claim . . . Should there be a final determination of compensability, and the claimants accept an award under this section, the claimants shall not be liable for any expenses, including attorney's fees, incurred in connection with the filing of a claim under ss. 766.301-766.316 other than those expenses awarded under this section.
In this case, since Appellants received an award from the ALJ, they were due an award of their attorneys' fees and costs. NICA's position that Appellants needed to prevail, or be considered a "prevailing party," in order to recover is not consistent with the language of the statute. Section 766.31 does not address prevailing parties, nor prohibit awards to non-prevailing parties. Cf, e.g., § 723.068 ("[I]n any proceeding between private parties to enforce provisions of this chapter, the prevailing party is entitled to a reasonable attorney's fee.") (emphasis added). Instead, the statute here hinges fee and cost awards on whether they were "incurred in connection with" the filing of a claim in which there is a compensability determination and award. So here, even though the ALJ awarded Appellants custodial care for just 12 hours per day at $15 dollars per hour (some $65,000 per year) forward from December 17, 2012, and not the more substantial benefits that they sought, there remained a compensability determination and award accepted under the statute. The statute compels payment of Appellants' fees and costs because they were incurred in connection with their claim. See Rodriguez v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 19 So. 3d 386, 388-89 (Fla. 2d DCA 2009) (authorizing an award of fees and costs incurred defending against NICA's efforts to clarify or modify a prior award of benefits because they were incurred "in connection with" a NICA benefits claim).
Conclusion
Accordingly, we REVERSE and REMAND to the ALJ with instructions to grant Appellants' attorneys' fees and costs. See Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 633 So. 2d 1103, 1106 (Fla. 3d DCA 1994) (addressing the calculation of NICA-related fees). WOLF, LEWIS, and OSTERHAUS, JJ., CONCUR.