Bird v. Weinhardt 393 So. 2d 4

ERVIN, Judge.

The appellant challenges the judge of industrial claims’ order of June 27,1979 denying compensation, and the judge’s order of April 11, 1978 assessing costs against claimant for unreasonably withdrawing his claim. We affirm on all points raised, including the order assessing costs. As to the latter, the judge of industrial claims found that claimant, through his lawyer, acted unreasonably in withdrawing his claim, and that the effect of the withdrawal, and the subsequent reinstatement was a continuance1 allowing the judge to assess'costs against a party who has unreasonably continued the proceedings. Nothing in the record shows claimant’s action was reasonable. The judge’s order recited that all attorneys had agreed to set the final hearing within 90 days. A little more than a week following the agreement, a notice was mailed to counsel advising them that the hearing had been set for February 9, 1978. It was also stated claimant’s counsel had 90 days in which to schedule the deposition of a Dr. Brown, but chose not to do so, then two days before the scheduled hearing, moved for a continuance, relying on a letter which he had just received from Dr. Brown, indicating to him that further tests of claimant were necessary. When counsel was unsuccessful in obtaining the continuance, he dismissed the claim, resulting in the order assessing costs. A second claim was later filed, essentially the same as the first.

*5Appellant, relying upon Orlando v. Exxon Company, U.S.A., IRC Order 2-3040 (September 22, 1976), and Hamman v. Churchman Tower Service, IRC Order 2-3083 (December 29, 1976), argues he has an absolute right to dismiss voluntarily and without penalty his claim at any time before he presents his case-in-chief. Those cases permit a party to dismiss a claim under such circumstances and subsequently refile it, but they do not involve an interpretation of Section 440.32, empowering a judge to assess costs against a party who has continued the proceeding “without reasonable ground.” It is one thing to say that a worker’s claim will not be jeopardized before he establishes his case; it is an altogether different one to say that the judge has no power to enforce his order when an attorney fails to offer reasonable grounds why a claim should be continued, and then finesses the denial by simply dismissing the claim, and later refiles it, thereby in effect achieving that which he was denied. The anomalous result urged by claimant cannot have been intended by the legislature’s enactment of Section 440.32. If we were to accept claimant’s argument, and construe the statute as he desires, the only instance costs could be imposed upon a party who seeks a continuance without offering reasonable grounds would occur if the judge granted the continuance. Paradoxically, if the judge refused to grant an unfounded request, and the party opted to dismiss the claim for the purpose of seeking further delay, the judge would be barred by the interpretation advanced from levying sanctions against the indolent party.

We refuse to accept a construction of the statute which in effect places control over the progress of worker’s claims not in the deputy commissioners, but at the whim of the litigants. We conclude that Section 440.32 may logically be interpreted as authorizing the assessment of costs against one who, without reasonable grounds, seeks a continuance of a hearing and, upon its denial, dismisses the claim only to refile it.

The orders are AFFIRMED.

WOODROW M. MELVIN (Retired), Associate Judge, concurs.

SHAW, J., concurring and dissenting with opinion.

SHAW, Judge,

concurring and dissenting.

I would reverse the order assessing costs against the claimant. Section 440.32, Florida Statutes (1978), provides:

If the judge of industrial claims, commission, or any court having jurisdiction of proceedings in respect of any claim or compensation order determines that the proceedings in respect of such claim or order have been instituted or continued without reasonable ground, the cost of such proceedings shall be assessed against the party who has so instituted or continued such proceedings.

I interpret the statute as saying that a judge of industrial claims may assess costs against a party upon a proper determination that said party has initiated or maintained a claim or order without reasonable grounds. There has been no such determination in this instance. In fact, the reasonableness of the claimant’s institution and continuance of the claim was never explored by the judge.

The majority opinion proceeds on the assumption that the judge assessed costs pursuant to § 440.32, Florida Statutes. A close reading of the judge’s order reveals that this is not the case. His inquiry was directed to the reasonableness of the motion for a continuance and the dismissal of the claim when a continuance was not granted. The judge, in Paragraph 4 of his April 11, 1978 order, appears to recognize the futility of attempting to assess costs under § 440.32 and, after expressing a need for legislative attention directed to the problem, he calls upon his authority in “equity” to sustain his actions. The following paragraph from his order more fully illuminates his reasoning:

4. Florida Statute 440.32 provides that a Judge of Industrial Claims may assess the cost of any proceedings that he finds have been instituted or continued without reasonable grounds against the party who has so instituted or continued *6such proceedings. This Judge of Industrial Claims is not certain that he can assess cost against claimant’s counsel under the circumstances of this case since it appears the Motions to Tax Costs are directed toward the claimant’s having requested a continuance two days before the scheduled final hearing and then withdrawing his claim after he (sic) request for a continuance had been denied. This is certainly a matter which deserves Legislative attention. However, in view of the fact that claimant’s counsel had the right to withdraw his claim after his Motion for Continuance was granted and there was no correlative right for the employers/carriers, this Judge of Industrial Claims finds that equity dictates I find that the cost reasonably incurred and referred to in paragraphs number one and number two be assessed against the claimant.

I fully appreciate the aggravation and frustration occasioned by withdrawal of a claim two days prior to the scheduled final hearing. It is, nevertheless, my opinion that in Florida the award of fees and costs in workers’ compensation cases is statutory and must be strictly construed. Sunbeam Enterprises v. Upthegrove, 316 So.2d 34 (Fla.1975); Parrot v. City of Fort Lauderdale, 190 So.2d 326 (Fla.1966). I am unable to find any case law supporting the proposition that a deputy commissioner has authority in equity to assess costs. I accordingly dissent as to the affirmance of the assessment of cost against the claimant.

I concur in the majority opinion relative to the remaining issues on appeal.