In a recent case, Stark v. Alan Slootsky, the JCC denied the Employer/Carrier’s Motion to Tax Costs for a number of reasons. As a procedural background, by way of a compensation order dated November 3, 2014, both the Employer/Carrier and Employee prevailed on certain issues and defenses presented. The parties reserved as to fees and costs. On July 27, 2017, after the Claimant filed a Verified Petition for Attorney’s Fees and Costs and the Employer/Carrier filed a Verified Response to same, the parties stipulated to attorney’s fees and costs due to Claimant’s counsel. The Employer/Carrier thereafter filed a Motion to Tax Costs.
Although section 440.34(3) entitles both the Employer/Carrier and the Claimant to costs, the JCC held that the Employer/Carrier in this case failed to raise in its Verified Response to the Claimant’s Verified Petition for Attorney’s Fees and Costs their claim for prevailing party costs, which was ripe at that time. The JCC also noted that the Employer/Carrier failed to reserve jurisdiction on their costs at the time the parties stipulated to Claimant’s fees and costs. Essentially, the JCC denied the Employer/Carrier’s Motion to Tax Costs because it had the appearance of a “gotcha” tactic in that the Employer/Carrier failed to put the Claimant on notice in its Verified Response to the Claimant’s Verified Petition.
This case puts Employer/Carriers on notice that any pursuit of costs must be raised prior to the resolution of the Claimant’s fees and costs or else the JCC is likely to deny same.
If you have any questions regarding this case or the issue of the recoupment of costs in general, please feel free to contact Attorney, Katherine B. Brezinski.