11 Fla. L. Weekly Supp. 867a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 306b

Insurance — Uninsured motorist — Appeal and cross-appeal of judgment awarding damages, attorney’s fees, and costs to plaintiff who was passenger in vehicle rear-ended by uninsured motorist in action against UM carrier of driver of vehicle in which plaintiff rode — Discovery — Failure to comply — Temporomandibular disorder — No error in denying insurer’s motion for mistrial based on plaintiff’s failure to reveal TMJ before trial where insurer was not deprived of opportunity to discover and prepare for issue since TMJ was noted in medical records which insurer sought and placed into evidence and of which insurer had possession before trial, and plaintiff’s counsel announced during opening statement that TMJ was not connected to collision — No error in denying motion for mistrial based on plaintiff’s failure to list in interrogatories the name of family physician who has previously treated her for same symptoms claimed to be caused by accident where disclosure was made by plaintiff’s orthopedic surgeon testifying from office notes that were submitted into evidence by insurer — Single improper question regarding whether uninsured driver who rear-ended vehicle had consumed alcohol was not so prejudicial as to deny insurer fair trial where jury never heard any testimony from plaintiff on whether driver had been drinking, trial court sustained objection, plaintiff testified that she did not know if driver had been drinking because she had no conversation with driver, and insurer had already depicted driver as being at fault and solely responsible for accident — Evidence — No merit to claim that trial court erred in admitting report of plaintiff’s expert without redacting statement that plaintiff was honest and forthcoming where insurer stipulated to admission of report, and insurer agreed that plaintiff’s counsel could ask expert whether he relied on plaintiff to be forthright — Jury instructions — Trial court’s instruction that it had taken judicial notice of fact that insurer never requested, with or without cause, that plaintiff submit to additional medical examination was harmless error where insurer opened door to issue during voir dire by commenting that it was entitled to only one examination, thereby prompting plaintiff’s counsel to show insurer could have requested second examination if good cause was shown — Argument — No merit to claim that plaintiff’s counsel’s statement that insurer had failed to honor contract although plaintiff had no contract with insurer and portrayal of insurer’s expert as professional witness and high priced doctor were designed to inflame jury to include punitive aspect in damage award where issue of lack of contract was brought up by both parties during trial, evidence revealed that expert charged significant sum for testifying for insurer, insurer failed to make timely objections to remarks, and punitive damages were not sought or awarded — Collateral setoff — Absent stipulation to presentation of PIP setoff evidence to trial judge after trial, trial court abused its discretion by awarding PIP setoff after trial — Where verdict rendered by jury exceeded lower court’s jurisdictional limit, such that reinstatement of verdict would render judgment void, trial court is ordered to enter amended final judgment, without PIP setoff, not exceeding jurisdictional limit — Attorney’s fees — Appellate — Prevailing party appellate fees are awarded to plaintiff

ALLSTATE INSURANCE COMPANY, Appellant, v. ANNA L. DOON, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-03-07. L.C. Case No. 99-CC-3353. July 26, 2004. Appeal from County Court for Orange County, C. Jeffery Arnold, Judge. Counsel: Jessica J. Recksiedler, Thompson & Associates, P.A., Maitland, for Appellant. V. Rand Saltsgaver, Law Offices of V. Rand Saltsgaver, Orlando, for Appellee.

(Before Strickland, Apte, and Bronson, JJ.)

ORDER AFFIRMING IN PART AND REVERSING IN PART THE LOWER COURT’S ORDER

(PER CURIAM.)Appellant Allstate Insurance Company (“Allstate”), Defendant in the lower court, timely filed this appeal of the lower court’s final judgment awarding damages, attorney fees, and costs rendered on December 31, 2002, in favor of Anna L. Doon (“Doon”). This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A). This Court dispenses with oral argument pursuant to Florida Rule of Appellate Procedure 9.320.Factual and Procedural Background

On January 5, 1997, Doon (Plaintiff below) was injured in a motor vehicle accident as a result of Ronald Wilkerson (“Wilkerson”), an uninsured motorist, who rear-ended the vehicle in which Doon was a passenger. At the time of the accident, the vehicle was operated by Ami Ecker and owned by Douglas Ecker. Douglas Ecker had an insurance policy with Allstate which provided uninsured motorist (“UM”) coverage¹ for passengers riding in his vehicle. On April 7, 1999, Doon filed suit against Allstate, wherein she alleged, among other things, that because Wilkerson’s vehicle was uninsured at the time of the accident, Allstate was liable for the damages sustained by Doon. The Complaint also alleged that Allstate failed to pay appropriate underinsured motorist (“UIM”) benefits, personal injury protection (“PIP”) benefits, and Medpay benefits to which Doon was entitled, resulting in a breach of contract between Douglas Ecker (policy holder) and Allstate.

On January 8, 2001, Allstate filed its Motion in Limine. On July 27, 2001, Allstate filed its amended Motion in Limine which the lower court granted.² On October 29, 2001, the case went to trial before a jury. On November 2, 2001, the jury returned a verdict in favor of Doon but did not find that she had sustained a permanent injury. Doon was awarded $14,845.00 in damages for past medical expenses and $5,000.00 in damages for future medical expenses.

After the judgment, Allstate filed its motion for a new trial and remittur. On November 13, 2001, Doon filed her motion for a directed verdict and new trial on non-economic damages, which the trial court denied. On November 26, 2001, Allstate filed a motion for collateral source setoff along with an amended motion for a new trial and remittur. After conducting post-trial hearings on the matter, the trial court denied Allstate’s motion for a new trial and remittur but granted in favor of Allstate a collateral source setoff in the amount of $10,870.10, resulting in an adjusted net verdict of $8,975.42 in favor of Doon. The trial court also awarded reasonable attorney’s fees in the amount of $65,797.50, in addition to paralegal fees, expert witness fees, and costs, for a total award of $92,021.82, to bear interest at 9% per annum from the date of the order. On January 30, 2003, Allstate filed its notice of appeal. On March 17, 2003, Doon filed her notice of cross-appeal.Standard of Review

Appellant Allstate seeks to have this Court grant it a new trial for two reasons: 1) the cumulative effect and nature of appellee Doon’s actions at trial were such that they created unfair prejudice and denied Allstate a fair trial; and 2) the actions of the trial court constituted reversible error warranting a new trial. Therefore, the standard of review on appeal is whether the trial court abused its discretion by its admission and/or exclusion of evidence during the course of the trial. Galvez v. Merelo, 849 So. 2d 1158 (Fla. 1st DCA 2003); Warner v. Caldwell, 354 So. 2d 91 (Fla. 3d DCA 1977). However, there can be no finding of an abuse of discretion if, under the circumstances, reasonable people could differ as to the propriety of the action taken by the trial court. Smith v. Brown, 525 So. 2d 868 (Fla. 1988); Shearon v. Sullivan, 821 So. 2d 1222 (Fla. 1st DCA 2002). Discretion is abused if the ruling of the trial court is contrary to law. Ray Richardson, Inc. v. Charlton, 191 So. 433 (Fla. 1939).

Appellee Doon cross-appeals, contending that the trial court erred by setting off her collateral benefits in the amount of $10,870.10 from the verdict. The standard of review on the cross-appeal is whether the trial court abused its discretion by awarding Allstate a PIP setoff absent a stipulation by the parties to have the trial court consider the setoffs after trial. See Caruso v. Baumle, 29 Fla. L. Weekly S316a (Fla. June 24, 2004).Discussion

Disclosure of TMJ Injuries

Allstate raises several issues on appeal. First, it contends that a new trial is warranted due to the unfair prejudice that resulted from Doon’s failure to reveal her “jaw problems” or Temporomandibular Disorder (“TMJ”) injuries before the trial. During opening statement, Doon’s counsel mentioned that Doon had jaw popping or TMJ symptoms. Allstate maintains on appeal that since TMJ injuries cause headaches, it went to the heart of Doon’s claim for damages. Allstate, therefore, contends that it was deprived of the opportunity to conduct further meaningful discovery and prepare for these issues at the trial. In support of its position, Allstate argues that the purpose of discovery is to eliminate the element of surprise.

A review of the record shows that the TMJ problem complained of by Doon was in Dr. Green’s records, Doon’s chiropractor, which Allstate sought and put into evidence. In addition, Allstate had possession of Doon’s medical records from Dr. Green before the trial, wherein Dr. Green made a recommendation that Doon should seek treatment for her TMJ problems.³ At the trial, every piece of pertinent evidence concerning Doon’s prior and present medical condition was fully disclosed to the jury. More importantly, plaintiff’s counsel announced during his opening statement that the TMJ problem was not related to Doon’s claim for damages in this lawsuit and stated “we’re not alleging any of that [TMJ problems are] connected to this collision.” Thus, the lower court did not err in denying Allstate’s motion for a mistrial, and properly instructed plaintiff’s counsel to limit his comments to evidence that would be revealed during the course of the trial.

Next, Allstate asserts that it was prejudiced by Doon’s failure to list her family physician, Dr. Chase, who treated her for dizziness and memory loss, the very symptoms that Doon claimed were caused by the 1997 accident in the written interrogatories. During the direct examination of Dr. Godleski, Doon’s orthopedic surgeon, he testified that Doon had gone to see Dr. Chase for dizziness and memory loss. Whereupon, Allstate made a timely objection. Immediately thereafter, at a sidebar conference, Allstate moved for a mistrial. The lower court again denied the motion. To support its argument on appeal, Allstate cites Elkins v. Syken, 672 So. 2d 517 (Fla. 1996) and State Road Dept. v. Florida East Coast Railway Co., 212 So. 2d 315 (Fla. 3d DCA 1968) for the proposition that Doon had a duty to provide a full answer and furnish subsequent data discovered to eliminate the element of surprise. Allstate also relied on Tetrault v. Fairchild, 799 So. 2d 226 (Fla. 5th DCA 2001) for support. In Tetrault, the defendant had no notice that Dr. Gordon, plaintiff’s expert witness, would be called to testify and give his opinion on medical causation of plaintiff’s injuries at the trial. Unlike Tetrault, Allstate was not surprised by the testimony of Dr. Godleski since he was testifying to his own office notes that were submitted into evidence by Allstate.

Evidence that Wilkerson was DUI

Allstate next argues that there was a complete absence of credible evidence to raise the issue of alcohol at the trial. During the direct examination of Doon, plaintiff’s counsel asked whether there had been any drinking of alcoholic beverages.⁴ Whereupon, Allstate made a timely objection which the trial court sustained. Allstate asserts that although the trial court sustained Allstate’s objection, the jury was able to infer that Wilkerson was intoxicated. Since Allstate had already admitted that Wilkerson was negligent in causing the auto collision at the start of the trial, it contends that any reference to Wilkerson as being intoxicated only served to inflame the jury.

Under the facts of this case, the single improper remark was not so prejudicial as to deny Allstate a fair trial because the jury never heard any testimony from Doon on whether Wilkerson had consumed alcoholic beverage at the time of the accident. Further, the lower court properly sustained the objection and Doon also testified that she was not sure if Wilkerson had been drinking because she stayed in the vehicle and never had a conversation with Wilkerson at the accident scene. More importantly, Allstate had already depicted Wilkerson to the jury as being at fault and solely responsible for causing the motor vehicle accident by rear-ending a stopped vehicle driven by Ami Ecker.

Admission of Dr. Sharfman’s Report

Allstate also argues that the trial court erred by permitting Dr. Sharfman’s report, Doon’s expert witness, to be used as evidence without first redacting the statement that Doon was “honest and forthright.” In particular, Allstate asserts that the unredacted version of Dr. Sharfman’s report violated the trial court’s order on Allstate’s motion in limine which specifically prohibited Doon’s expert witnesses from commenting on the veracity of any party or witness. Contrary to Allstate’s assertion, the record shows that Allstate stipulated to the admission of Dr. Sharfman’s medical report into evidence at the trial without any objections.

During the direct examination of Dr. Sharfman, plaintiff’s counsel asked if he found Doon to be forthright in explaining her complaints of pain. Whereupon, Allstate objected and moved for a mistrial. At the bench conference, Allstate argued that plaintiff’s counsel could only ask the witness “[w]hether or not he [Dr. Sharfman] relies on her [Doon] to be forthright, he [Dr. Sharfman] can comment on that, that that’s [sic] what he relies upon.” (emphasis supplied). Most importantly, when plaintiff’s counsel asked the trial judge if he could inquire about whether Dr. Sharfman relied upon Doon to be forthright when evaluating her complaints of pain, Allstate stipulated and said“[r]elied on her [Doon] to be forthright, yes.”Hence, Allstate cannot now claim that the admission of the report into evidence at the trial caused unfair prejudice when it had the opportunity to review Dr. Sharfinan’s report and object thereto before allowing it into evidence at the trial.

Judicial Notice of Doon’s Physical Medical Examination

Allstate next argues that the trial court failed to instruct the jury that good cause was required before it could seek a second physical examination under Florida Rule of Civil Procedure 1.360. See Fla. R. Civ. P. 1.360. While reading the instructions to the jury, over Allstate’s objection, the trial court instructed the panel “that it has taken judicial notice of the fact that the defendant, Allstate Insurance Company, has never requested, with or without cause, that the plaintiff Anna L. Doon, submit to an additional medical examination by Dr. James Urbach or another physician.” Allstate, therefore, contends that the trial court abused its discretion by commenting on the evidence or lack thereof to the jury.⁵

The trial court’s remarks as delineated above, although improper, constituted harmless error. During the redirect examination of Dr. Urbach, Allstate’s own medical expert, he testified that he was not aware that he could have requested a second examination because he did not know the legal standard regarding a second examination. Dr. Urbach further testified that while he believed Doon sustained injury from the 1997 accident, it was not permanent, which was consistent with the verdict reached by the jury. In addition, Allstate opened the door to this issue during voir dire by commenting that it was entitled to only one physical examination which then prompted plaintiff’s counsel to introduce evidence in an attempt to minimize the prejudicial impact by showing that Allstate could have requested a second examination if good cause was shown.

Improper Closing Argument

Allstate further argues that the trial court erred in failing to sustain the objections to plaintiff’s counsel’s analogies and statements during his closing and rebuttal argument. First, Allstate points to the comments made by Doon’s counsel during closing argument that Allstate had failed to “honor its contract,” suggesting to the jury that Allstate had breached its contract by failing to pay all of Doon’s damages. Second, Allstate argues that the portrayal of Dr. Urbach as a “professional witness,” and calling him a “high priced doctor” was improper and inflammatory. Last, Allstate maintains that such statements by Doon’s counsel rose to the level of “conscious of the community” argument, designed to inflame the jury to include a punitive aspect in the damage award.

In the instant case, the record establishes that both parties brought up the issue of contract or lack thereof during the course of the trial. In particular, Allstate announced during its opening statement and again during Doon’s cross examination that she did not have a contract with Allstate; rather, Doon’s claim against Allstate in this case stemmed solely from Ami Ecker’s UM coverage. Since Allstate vehemently contested Doon’s entitlement to any benefits under Ami Ecker’s UM coverage, the comments by plaintiff counsel were not so inflammatory as to deny Allstate a fair trial on the issue of damages.

Dr. Urbach was Allstate’s only medical expert witness. Based on the record, Dr. Urbach’s testimony revealed that he charged a significant sum for testifying as an expert witness for Allstate. Therefore, it appears that the evidence in the record supported plaintiff’s comment about Dr. Urbach being a “high price doctor.”⁶

In addition, Allstate failed to make timely objections to the prejudicial remarks by counsel. Gregory v. Seaboard Sys. Railroad, Inc., 484So. 2d 35 (Fla. 2d DCA 1986); Honda Motor Co., Ltd. v. Marcus, 440So. 2d 373 (Fla. 3d DCA 1983) (finding that issues not preserved due to counsel’s failure to make appropriate objections or in-trial motions cannot be raised for the first time on appeal); Mt. Sinai Hospital of Greater Miami v. Steiner, 426 So.2d 1154 (Fla. 3d DCA 1983) (holding that appellate review is limited to the specific grounds raised below); Tabasky v. Dreyfuss, 350 So. 2d 520, 521 (Fla. 3d DCA 1977).

Finally, and most important is the fact that the jury did not return a verdict for punitive damages nor were punitive damages ever requested or suggested by plaintiff’s counsel. Hence, Allstate’s conscious of the community argument is without merit. See Erie Ins. Co. v. Bushy, 394 So. 2d 228 (Fla. 5th DCA 1981); Murphy v. Int’l Robotics Sys., Inc., 766 So. 2d 1010 (Fla. 2000) (holding that closing argument harmful and improper when it affects the fairness of the trial proceedings and “reaches into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for such comments”).

In sum, the trial court acted within its discretion in denying Allstate’s motion for a mistrial. All other points argued or raised on Allstate’s appeal are without merit.The Cross Appeal

Doon argues that the trial court erred in granting Allstate a collateral setoff in the amount of $10,870.10 because there was no showing that the records maintained by Fortune Insurance Company (“Fortune”), Doon’s PIP carrier, were kept in a regular course of business before Fortune became insolvent. The Supreme Court of Florida has recently ruled that absent a waiver or stipulation by the parties to have the trial court consider setoffs after trial, evidence of PIP benefits for purposes of a setoff defense must be presented to the jury during course of a jury trial under section 627.736(3), Florida Statutes. See Baumle, 29 Fla. L. Weekly at S316a.

In the instant case, there is no evidence in the record showing that the parties stipulated to the presentation of the PIP setoff evidence to the trial judge. Instead, the record shows that the trial court granted Allstate’s motion in limine which requested testimony of payment by collateral sources be handled after trial by the trial judge. This Court is aware that the trial court did not have the benefit of the opinion in Baumle at the time of the ruling; however, absent such stipulation by the parties, the trial court abused its discretion by awarding the PIP setoff amount of $10,870.10 after trial in light of the holding in Baumle.

Given that the verdict returned by the jury in favor of Doon exceeded the amount over which the lower court has jurisdiction, reinstating the verdict amount of $19,845.00⁷ would render the judgment void. See White v. Marine Transport Lines, Inc., 372 So. 2d 81, 84 (Fla. 1979) (holding that “as a matter of judicial power the county court is precluded from entering a judgment for damages in excess of its mandated jurisdiction”).

Accordingly, the lower court is ordered to enter an amended final judgment, without any PIP setoffs, not exceeding the lower court’s jurisdictional limit of $15,000.00 for damages in favor of Doon. Appellate Attorney’s Fees

Appellee Doon has timely filed her motion seeking an award of appellate attorney’s fees pursuant to section 768.79(1), Florida Statutes. Since Appellee is the prevailing party on appeal, Appellee is granted an award of her appellate attorney’s fees pursuant to Florida Rule of Appellate Procedure 9.400, and that the assessment of those fees is remanded to the lower tribunal. Additionally, Appellee is entitled to have costs taxed in her favor by filing a proper motion with the lower tribunal within thirty days after the issuance of the mandate in this case.

Based upon the foregoing, it is hereby ORDERED AND ADJUDGED that the lower court’s final judgment is AFFIRMED IN PART AND REVERSED IN PART.

It is further ORDERED AND ADJUDGED that this case is REMANDED to the trial court for entry of an amended judgment, without any PIP setoffs, within the jurisdictional limits of the county court, or $15,000.00 for damages.

__________________

¹UM coverage is a “limited form of coverage which exists for the sole purpose of providing a source of financial responsibility for the uninsured tortfeasor.” Allstate, as the uninsured motorist insurance provider, stands in the uninsured motorist’s shoes.

²Allstate’s motion in limine requests that Doon’s expert witness be refrained from commenting on “the veracity of any party or witness unless specifically qualified to render such an opinion.”

³Allstate does not deny that Doon’s TMJ injuries were mentioned in Dr. Green’s records during pre-trial discovery. Further, if Allstate was concerned about Doon’s TMJ injuries, it could have sought further pretrial discovery from Doon regarding her treatment and/or questioned her about the TMJ injuries during her deposition. As is evident from the record, that was not done; therefore, Allstate cannot now claim that its discovery attempts were thwarted by Doon’s failure to disclose her TMJ injuries when that information was disclosed and made available to Allstate for further inquiry, if needed.

⁴

DIRECT EXAMINATION BY MR. MELTON:

Q. Had anyone been doing any drinking of alcoholic beverages?

A. Not in our vehicle.

Q. Okay. And when you say not in your vehicle, did you get the sense that someone in the other vehicle had been?

A. I wasn’t really sure —

Q. So if it was in another vehicle, it wasn’t in your vehicle?

A. Correct.

⁵Section 90.106, Florida Statutes, provides that “[a] judge may not sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused.” § 90.106, Fla. Stat. (2003).

⁶Dr. Urbach testified that he charges $700.00 for the first two hours of testimony at trial, $800.00 for the third hour, $900.00 for the fourth hour, and so forth.

⁷Contrary to the final judgment, the original amount returned by the verdict was $19,845.00, not $19,845.52 as maintained by Doon.

__________________

[Editor’s note: For informational purposes, the lower court’s final judgment is published below.]

ANNA L. DOON, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CCO-99-3353, Division 71. December 31, 2002. C. Jeffery Arnold, Judge. Counsel: Jessica Recksiedler, Maitland. Robert D. Melton, Robert D. Melton, P.A., Orlando.

FINAL JUDGMENT AWARDING DAMAGES, ATTORNEYS’ FEES, PARALEGAL’S FEES AND COSTS TO THE PLAINTIFF AND AGAINST THE DEFENDANT, ALLSTATE INSURANCE COMPANY

THIS CAUSE having come on to be heard on Plaintiff’s Motion to Award Damages to the Plaintiff, including taxation of attorneys’ fees, paralegal’s fees and costs, and the Court having heard testimony and argument, having examined the Court file, and being otherwise duly advised, the Court makes the following findings of fact:

1. The Plaintiff was awarded a jury verdict in the amount of $19,845.52 on November 2, 2001.

2. Defendant was and is entitled to a collateral source setoff and Defendant has proven the entitlement to collateral source setoff in the amount of $10,870.10, to be subtracted from the verdict awarded to the Plaintiff resulting in an adjusted net verdict in favor of the Plaintiff in the amount of $8,975.42, which is within the maximum jurisdiction of the County Court, or $15,000.00 for damages.

3. Plaintiff is entitled to reasonable attorneys’ fees, paralegal’s fees and costs incurred by the Plaintiff in this cause based on the fact that Plaintiff filed a Proposal for Settlement in the amount of $4,000.00. Plaintiff’s verdict exceeds the Proposal for Settlement in excess of 25%, entitling Plaintiff to an award of reasonable attorneys’ fees and paralegal’s fees from the date of the Proposal for Settlement and costs in this cause.

4. The attorneys and paralegals representing the Plaintiff reasonably spent the following hours and time in representing the Plaintiff in this cause:

a. Robert D. Melton reasonably spent 193.6 hours in representing the Plaintiff in this cause,

b. Joseph Birch reasonably spent 14.4 hours in representing the Plaintiff in this cause,

c. Piercy Stakelum reasonably spent 29.7 hours in representing the Plaintiff in this cause,

d. The paralegal, Katherine Wert, reasonably spent 41.3 hours in this cause,

e. The paralegal, Arve Wilkstrom, reasonably spent 17.1 hours in this cause.

5. A reasonable hourly rate to be awarded to the Plaintiff for her attorneys and paralegals, to be paid by the Defendant are as follows:

a. Robert D. Melton — $300.00 per hour,

b. Joseph Birch — $175.00 per hour,

c. Piercy Stakelum — $175.00 per hour,

d. The paralegal, Katherine Wert — $75.00 per hour,

e. The paralegal, Arve Wilkstrom — $75.00 per hour.

6. Plaintiff’s attorneys undertook the representation of the Plaintiff pursuant to a pure contingency fee agreement, as defined State Farm v. Palma, 555 So.2d 836 (Fla. 1990).

7. The Court has considered all the criteria set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), as well as Standard Guaranty Insurance Company v. Quanstrom, 555 So.2d 828 (Fla. 1990).

8. This Court is aware of the recent decision of the 5th District Court of Appeal, Allstate Insurance Company v. Sarkis, 26 Fla. L. Weekly D2870 (Fla. 5th DCA 12-7-01), which prohibits the awarding of a multiplier in cases of this nature. This Court is aware that this case is a claim for uninsured motorist coverage which is a breach of contract action as well as a personal injury claim. While this Court is aware that the Sarkis decision prohibits the awarding of a contingency fee multiplier in cases of this nature, this Court is also aware of the Supreme Court opinions which allow for the awarding of a multiplier. Because the Plaintiff has requested this Court to make a finding of fact in the event that Sarkis is reversed by the Supreme Court, this Court being aware of the fact that Sarkis is on appeal to the Florida Supreme Court from the 5th District Court of Appeal, based on conflict with other decisions in other Districts, as well as opinions by the Supreme Court, this Court has heard evidence of the entitlement of Plaintiff and Plaintiff’s attorneys to a contingency fee multiplier in the computation of the attorneys’ fee award, but for the Sarkis decision. That taking into consideration the evidence, including the testimony of Plaintiff’s expert Richard Simon, as well as the above law cited, the Court finds that the Plaintiff’s chances of success at the outset or onset of this case were:

___ less than even (x2.0-2.5)

X approximately even (x1.5-2.0)

___ more likely than not (x1.0-1.5)

Accordingly, a contingency risk multiplier of 1.5 would be appropriate and applicable in the event that the Sarkis decision were to be reversed by the Supreme Court.

9. Based upon this Court’s determination, the total attorney fee and paralegal fees that the Plaintiff is entitled to recover from the Defendant for the services of her attorneys, Robert D. Melton, Joseph Birch and Piercy Stakelum, and paralegals, before this Court, not including a contingency fee multiplier, is $70,177.50.

10. Plaintiff incurred reasonable taxable costs in the amount of $6,418.90 during the Plaintiff’s claim in this case which are taxable against the Defendant.

11. The Court finds that the Plaintiff’s experts, Roger Helms and Richard Simon, both of whom testified to the award of attorney fees and paralegal fees in favor of the Plaintiff for the services of the attorneys who represented the Plaintiff and for which said experts have testified that they expect to be paid for their testimony and for which the Court finds that they are entitled to expert witness fees in the following amounts:

a. Roger Helms in the amount of $5,100.00.

b. Richard Simon in the amount of $1,350.00.

WHEREFORE, it is hereby ORDERED AND ADJUDGED, that:

12. Plaintiff, ANNA L. DOON, does hereby have and recover from Defendant, ALLSTATE INSURANCE COMPANY, for damages in the amount of $8,975.42, plus reasonable attorneys’ fees in the amount of $65,797.50, paralegal fees in the amount of $4,380.00, taxable costs in the amount of $12,868.90, which includes expert witness fees for Roger Helms in the amount of $5,100.00, and Richard Simon in the amount of $1,350.00, for a total sum of $92,021.82, for which let execution issue.

13. This obligation shall bear interest at the rate of 9% per annum, from the date hereof until paid in full.

14. The above judgment does not include a multiplier, pursuant to Allstate Insurance Company v. Sarkis, 26 Fla. L. Weekly D2870 (Fla. 5th DCA 12-7-01), at the time of awarding this judgment to the Plaintiff, ANNA L. DOON.

15. The sums described in paragraphs 12 and 13 above, shall be payable to Robert D. Melton and transmitted to him at Post Office Drawer 1032, 26 Wall Street Plaza, Orlando, Florida 32802. Once received, Robert D. Melton may file a satisfaction of judgment with the clerk of this Court.

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