MORGAN v. AMERICAN AIRLINES CMS (2020)

On Motion for Rehearing

Yvette Morgan moves for rehearing asserting that this Court misapprehended her argument for costs associated with her August 24, 2018 petition for benefits. Citing Jennings v. Habana Health Care Ctr., 183 So. 3d 1131 (Fla. 1st DCA 2015), Morgan asserts that she is a prevailing party and thus entitled to costs. In Jennings, this Court determined that the timely provision of benefits “is irrelevant [to] the separate question of whether a party prevails, entitling the party to costs.” Id. at 1134. Further, timely acceptance of a petition for benefits under section 440.192(8), Florida Statutes, is not sufficient to avoid the imposition of costs. Although we conclude that Morgan did not preserve the argument on her entitlement to costs, we grant the motion for rehearing, withdraw our prior opinion, and substitute the following.

Yvette Morgan appeals an order of the Judge of Compensation Claims, finding she was not entitled to attorney's fees or costs for two petitions she filed in 2018. Morgan asserts the JCC erred because she was the prevailing party in the proceedings below. We disagree.

First, Morgan claims she was entitled to an award of attorney's fees. A claimant who petitions for benefits may recover attorney's fees when the employer or carrier files a response to the petition denying benefits, the claimant successfully prosecutes her petition with her attorney's assistance, and at least thirty days elapses from the time the employer or carrier receives the petition and provides the requested benefits. § 440.34(3), Fla. Stat. (2018); see Neville v. JC Penney Corp., 130 So. 3d 235 (Fla. 1st DCA 2013). At issue here is whether Morgan's attorney successfully prosecuted her petitions. To demonstrate successful prosecution, Morgan had to show that her attorney's efforts achieved “acceptance and payment of the claim[s].” Mitchell v Sunshine Cos., 850 So. 2d 632, 633 (Fla. 1st DCA 2003). Morgan did not meet her burden because the record shows that the Employer/Servicing Agent never denied the benefits at issue. Because it was not her attorney's successful prosecution of the petitions that achieved the E/SA's acceptance and payment of her claims, Morgan is not entitled to fees under section 440.34(3)(b). See Franco v. SCI at Palmer Club at Prestancia, 989 So. 2d 709 (Fla. 1st DCA 2008).

Second, Morgan claims she was entitled to costs as a prevailing party. But the JCC made no relevant findings on Morgan's entitlement to costs, and Morgan did not bring this oversight to the attention of the JCC in a timely motion for rehearing. Thus, this issue was not preserved for appellate review. See, e.g., Hamilton v. R.L. Best Int'l, 996 So. 2d 233, 234 (Fla. 1st DCA 2008) (holding if error is one that first appears in final order, aggrieved party must bring it to judge's attention by filing motion for rehearing).

We, therefore, AFFIRM the JCC's order finding that Morgan was not entitled to fees or costs.

Per Curiam.

Rowe, Makar, and Kelsey, JJ., concur.