Opinion
No. AL-253.
December 22, 1982.
Appeal from the Deputy Commissioner.
Mary Ann Stiles of Stiles Livingston, Tampa, and John F. McMath, Miami, for appellants.
Howard L. Silverstein of Silverstein Hellman, Miami, for appellee.
This cause is before us on appeal from an order in a workers' compensation proceeding awarding wage loss benefits and costs, and, based on a finding of bad faith, attorney fees. We affirm the deputy's award of wage loss benefits and costs but set aside the attorney fees award and remand for a separate hearing and specific findings of bad faith to support the award.
Section 440.34(2)(b), Florida Statutes (1979), provides for an award of attorney fees for bad faith on the part of the carrier and requires that any determination of bad faith shall be made by the deputy commissioner through a separate fact-finding proceeding. In Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981), this court interpreted Section 440.34(2)(b), holding that, although the deputy need not conduct a completely separate hearing on the question of bad faith, "the question of entitlement to attorney's fees on the basis of bad faith [must] be specifically litigated as a separate issue with factual evidence presented going directly to that issue." As held in Embry-Riddle v. Vestal, 399 So.2d at 1035, "[t]he deputy may not simply infer from general testimony that bad faith exists."
Florida Erection Service v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981) discusses the broad discretion of the deputy commissioner in determining bad faith of the carrier as a basis for the award of attorney fees; but, in that case, a separate hearing had been held on the issue of bad faith.
The language of Section 440.34(2)(b), Florida Statutes (1979), is mandatory. The parties must specifically litigate the issue of bad faith in the manner required by Embry-Riddle, supra, which the record does not reveal was done in this case. The deputy's inference of bad faith from the general testimony does not meet the requirements of the statute and is therefore reversed.
The award of wage loss benefits and costs is affirmed and the cause remanded for further proceedings consistent herewith.
McCORD, J., concurs.
WENTWORTH, J., specially concurs, with opinion.
I agree with the majority holding because the issue of bad faith was not raised in the proceedings below. A general claim for attorney's fees does not per se constitute an allegation of bad faith. I would point out, however, that general testimony may constitute competent substantial evidence supporting or refuting an allegation of bad faith when it is specifically raised. See Embry Riddle v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981).