11 Fla. L. Weekly Supp. 937a
Insurance — Personal injury protection — Attorney’s fees — Discovery — Depositions — Expert witness fee — Treating physician questioned about his ability to obtain counsel and other matters relating to application of fee multiplier is fact witness not entitled to expert witness fee — Attorney’s claim for expert witness fee for deposition testimony is moot where issues of attorney’s fees and costs were previously settled by parties
APOPKA WELLNESS CENTER, INC., Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-002836. July 31, 2004. Carmine Bravo, Judge. Counsel: Glenn Klausman. George H. Featherstone, Law Offices of Kubicki Draper, P.A., Orlando, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION TO DETERMINE EXPERT WITNESS FEES
This matter came before the Court on July 23, 2004, on Plaintiff’s Motion to Determine Expert Witness Fees, and the Court being advised in the premises and having heard argument of counsel, the court finds that:
1. On or about April 13, 2004, Plaintiff served a Motion to Tax Attorney Fees and Costs. Pursuant to the motion, the Plaintiff alleged an entitlement to a contingency fee multiplier.
2. On or about July 9, 2004, the Defendant took the deposition of Dr. Adlai Green, owner of Apopka Wellness Center, Inc., and treating provider in this case, along with the deposition of Glenn Klausman, Esq., the Plaintiff’s attorney in this case.
3. On or about July 21, 2004, both parties agreed to the settlement of the Plaintiff’s claim for attorney fees and costs, leaving the expert fees for Dr. Green and Mr. Klausman’s depositions as the only remaining issue.
4. On or about July 22, 2004, Plaintiff served a Motion to Determine Expert Witness Fees.
5. Plaintiff argues that Dr. Green and Mr. Klausman qualify as experts under Rule 1.390, Fla. R. Civ. P. Rule 1.390(c), which states:
An expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine.
6. Defendant argues that:
a. Dr. Green was questioned about his ability to obtain counsel in this matter and other matters related to the application of a fee multiplier. As such, Dr. Green is a fact witness and is not entitled to an expert witness fee. Gonzalez v. State Farm Mutual Automobile Insurance Company, 8 Fla. Weekly Supp. 114a (2000).
b. At the time of the deposition, Mr. Klausman was the attorney of record in this case. Additionally, Mr. Klausman was seeking fees and a contingency fee multiplier from the Defendant. As such, Mr. Klausman is a party of interest in this matter.
c. In State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830, 833 (Fla. 1993), the Florida Supreme Court held that attorney’s fees may be awarded under F.S. 627.428 for litigating the issue of entitlement to an award of attorney’s fees, but not for litigating the amount of attorney’s fees to be awarded.
d. Subsequently, in Allstate Indemnity Co. v. Hicks, Case No. 5D03-3605 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D1523a], the District Court of Appeals found that the time spent litigating the appropriateness of a fee multiplier goes to amount, and as a result, is not recoverable under Palma.
10. Having considered the foregoing arguments of counsel and having reviewed the case,
IT IS ADJUDGED that:
1. Although Dr. Green may not have been the most appropriate person from Apopka Wellness Center to question about the issue of attorney’s fees, he was never asked for his medical opinion and, as such, is not an expert under Rule 1.390, Fla. R. Civ. P. Rule 1.390(c).
2. The issue of attorney fees and costs was previously settled by both parties. Therefore, Mr. Klausman’s claim for an expert witness fee is now moot.
3. Accordingly, Plaintiff’s Motion to Determine Expert Witness Fees is DENIED.
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