Charles Sales Corp. v. Filmore

PER CURIAM. This cause is before us on appeal from a final order awarding claimant temporary total disability benefits, payment of medical bills, wage-loss benefits, attendant care, penalties, costs, and attorney fees. Appellants have presented numerous issues for our consideration, and after careful study, we find error in only one instance. The deputy commissioner awarded the claimant’s attorney fees, apparently under Section 440.34(3)(b), Florida Statutes (1986), though the order does not cite grounds for the award. Appellants urge this was error because the issue was not litigated. This court has previously held that an award of bad-faith fees under Section 440.-34(3)(b) must be specifically litigated as a separate issue at hearing. Veterans Septic Tank Service v. Wallace, 445 So.2d 389, 390 (Fla. 1st DCA 1984); and Rivers v. SCA Services of Florida, Inc., 465 So.2d 634, 635 (Fla. 1st DCA 1985). Review of the record demonstrates that entitlement to bad-faith fees was not separately litigated, and the fee award, accordingly, must be reversed and remanded for further proceedings. See Rivers at 635. BOOTH, WIGGINTON and BARFIELD, JJ., concur.