Lack of Prosecution Claim for Attorney’s Fees

The recent First District Court of Appeal case of Limith v. Lenox on the Lake, Case No. 1D14-3761 (April 17, 2015) holds that where a Petition for Benefits is dismissed reserving jurisdiction on attorney’s fees and costs, the Employer/Servicing Agent can move to dismiss such claim for fees under the authority of Section 440.25(4)(i) which provides that a Judge may dismiss a PFB for lack of prosecution if there has been no record activity in the previous 12 months. The First District Court stated that the claimant could not have it both ways by tolling the statute of limitations and not being subject to a motion to dismiss for lack of prosecution.  In this case, the dismissal for lack of prosecution was important because if the claim was dismissed the Statute of Limitations barred the claim.  This holding seems to be a departure from previous holdings. So the recommendation is that if you have an inactive case where a Petition for Benefits was voluntarily dismissed with a reservation of jurisdiction on fees, you should look to see if you can have the claim for fees dismissed for lack of prosecution.

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