12 Fla. L. Weekly Supp. 307a

Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Award of multiplier is appropriate where fees are awarded pursuant to fee-shifting statute such as section 627.428 — No abuse of discretion in awarding 1.25 multiplier — Competent substantial evidence supported findings that likelihood of success at outset was more likely than not, that time spent up to point of confession by judgment was reasonable, that relevant market does require multiplier, that there was no way to mitigate risk of nonpayment, that maximum results were obtained, and that attorney represented medical provider on pure contingency basis — Time spent litigating amount of fees — While time spent litigating amount of attorney’s fees is not recoverable in attorney’s fee award, time spent proving denied requests for admissions in attorney’s fees litigation is recoverable under rule 1.380(c) — Fact that issues raised in requests for admissions are core issues in dispute does not qualify as reason for insurer’s failure to admit — However, award of fees pursuant to rule 1.380(c) should only include time spent after insurer denied requests for admissions and should be based on reasonable hourly rates without application of a multiplier — Discovery — Depositions — Expert witness fee — Provider’s attorney was not entitled to expert witness fee for deposition testimony regarding time documented in fee affidavit — Deposition time should have been awarded as cost due to fact that deposition was necessitated by denied request for admissions, and not subjected to multiplier — Appellate fees — Where provider did not prevail on all issues on appeal, appellate fees will be limited to those issues on which it prevailed

PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, v. PHYSICIAN’S INJURY CARE CENTER, INC., as assignee of Christopher Sunter, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-03-48. L.C. Case No. 2003-CC-4764. November 10, 2004. Appeal from the County Court, for Orange County, Thomas R. Kirkland, Judge. Counsel: Betsy E. Gallagher and Michael C. Clarke, Cole, Scott & Kissane, P.A., Tampa, for Appellant. Kevin B. Weiss, Weiss Legal Group, P.A., Maitland, for Appellee.

(Before MIHOK, EVANS, and SMITH, T., JJ.)

FINAL ORDER AFFIRMING IN PART AND REVERSINGIN PART THE LOWER COURT’S ORDER

(PER CURIAM.) Appellant, Progressive Express Insurance Company (Progressive), appeals the October 15, 2003, order which determined the amount of attorney’s fees, multiplier, and costs, pursuant to section 627.428, Florida Statutes, to be awarded Appellee, Physician’s Injury Care Center, Inc., as assignee of Christopher Sunter, (Physician’s Injury Care) arising out of an underlying action to recover personal injury protection (PIP) benefits. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A).

Procedural and Factual Background

On July 14, 2000, Christopher Sunter was involved in a motor vehicle accident from which he claimed injuries. At the time of the accident, Sunter was an insured of Progressive which provided no-fault benefits in accordance with Florida law. Following the accident, Sunter received treatment for accident related injuries from, and assigned his benefits under his insurance policy to, Physician’s Injury Care.

Physician’s Injury Care submitted the bills for such treatment directly to Progressive for payment. Of the $1,845.00 in charges submitted for the month of August, Progressive paid $1,835.00, failing to pay $10.00 of the charges for treatment rendered on August 30, 2000. However, when Physician’s Injury Care submitted the identical treatment on September 1, 2000, Progressive paid the charge in full.

On April 15, 2003, Physician’s Injury Care filed suit against Progressive seeking to recover the grand sum of $10.00, plus interest. On May 12, 2003, counsel for Physician’s Injury Care had a telephone conference with a claims adjuster for Progressive and agreed to settle the case. On May 15, 2003, Physician’s Injury Care received a check from Progressive for the full amount of the settlement. At the time that the underlying case was resolved, Progressive agreed that counsel for Physician’s Injury Care was entitled to reasonable attorney’s fees. Once it was clear that an agreement as to reasonable attorney’s fees could not be reached, counsel for Physician’s Injury Care filed a motion for attorney’s fees requesting $300.00 per hour, and a 2.5 multiplier.

In the first fee affidavit submitted by counsel for Physician’s Injury Care, counsel outlined 10.5 hours of billable activities at $300.00 per hour. After discovery was conducted between the parties on the attorney’s fee issue, counsel for Physician’s Injury Care filed an amended fee affidavit. In this affidavit, an additional 21.5 hours were documented after the underlying claim for PIP benefits was resolved and Progressive had agreed to reasonable attorney’s fees. Counsel for Physician’s Injury Care documented 3.0 hours spent on preparing for and giving his deposition testimony.

On August 7, 2003, Progressive objected to the requests for admissions from Physician’s Injury Care which were related to the amount of fees counsel was claiming. On September 5, 2003, the trial court found that all of the requests for admissions to which Progressive objected were proper and should have been responded to by Progressive other than by filing an objection.

On August 12, 2003, counsel for Physician’s Injury Care, Robert D. Melton, Esquire, was deposed regarding the motion for attorney’s fees and costs. Physician’s Injury Care had been a client of Melton’s for about two years. Melton claimed that the relevant market, Central Florida, required a contingency fee multiplier to obtain competent counsel, especially when Progressive is involved as a defendant. Melton asserted that Progressive is a historically difficult defendant and that the underlying claim for PIP benefits was not a run-of-the-mill PIP case. Melton stated this case was highly contested at the time that suit was filed, consequently, the court should determine the appropriateness of a multiplier, not as the case progresses, but as of the time of the filing of the suit.

On September 19, 2003, the trial court conducted an evidentiary hearing on the motion for fees and costs. It was stipulated that the only issue for the trial court to decide was the amount of attorney’s fees, not the entitlement to attorney’s fees, and the amount, if any, of a multiplier. Melton requested the trial court to find that twenty-six hours was reasonable, that $300.00 per hour was a reasonable hourly rate, and that a 2.0 multiplier should be used. Melton also requested 2.2 hours for expert fees at $350.00 per hour.

The trial court received expert testimony relating to what would constitute reasonable attorney’s fees and whether the relevant market would require a multiplier. Progressive’s expert, Virgil William Wright, Esquire, testified that the case involved a one-time $10.00 reduction with a senior lawyer retained by Physician’s Injury Care to obtain the monies owed, thus the hourly fee should be $250.00 an hour for five hours. Wright testified that a multiplier of one was appropriate as there was no risk of not getting paid. Progressive argued that the case involved a run-of-the-mill PIP suit and that counsel for Physician’s Injury Care had handled this exact type of case in the past. Additionally, Wright suggested that a multiplier was to be used in the rarest of cases and that Physician’s Injury Care failed to prove several required elements under Standard Guarantee Insurance Co. v. Quanstrom, 555 So. 2d 828, 831 (Fla. 1990) and Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Progressive contended that there was no evidence that the relevant market required the application of a multiplier to obtain competent counsel and success was likely at the outset for the plaintiff.

Wright also testified that this was a case that any lawyer would have taken because it involved a single $10.00 reduction which was inconsistent with later payments and that any award of time spent after the confession of judgment is contrary to the rule against fees for time spent litigating the amount of the fee. Wright related to the trial court the number of attorneys and the number of suits involving PIP currently on-going in the area, indicating that this type of case, usual and customary reductions (UCR) settles 100% of the time. Wright discussed ways in which plaintiff’s attorneys attempt to get around the law by using requests for admissions that are directed to the very core fee issued being litigated. Wright also stated that this was a case in which Progressive had no defense and that its own conduct contradicted what it already did when Progressive paid the same code at a reduced amount in one week then paid it at the billed amount a week later. Additionally, Wright indicated that the suit involved the same form pleadings and same complaint seen numerous times by lawyers handling these types of PIP cases. Wright testified that there was no difficulty in obtaining representation, especially for the medical providers. Wright concluded that five hours at $250.00 per hour, without a multiplier, was appropriate.

Rand Saltsgaver, Esquire, testified on behalf of Physician’s Injury Care as an expert. Saltsgaver testified that a multiplier was appropriate in this case. As a basis for this opinion, Saltsgaver reviewed the factors outlined in Standard Guarantee Insurance Co. v. Quanstrom, 555 So. 2d 828, 831 (Fla. 1990) and testified that Melton accepted representation on a pure contingency fee basis. Saltsgaver testified that he did not believe that Melton was able to mitigate the risk of nonpayment in any way. Saltsgaver evaluated the factors in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) and determined that all of the factors for a contingency risk multiplier had been met. Saltsgaver explained that a multiplier was necessary in this case because there was a classic question of fact and Progressive would have been able to rely on Automated Data Processing (ADP)¹ and its computer database to defend the medical bill reduction.

Saltsgaver testified that twenty-six hours was an appropriate amount of time and a multiplier of 2.0 should be used based on the evaluation of the case at the outset. Saltsgaver indicated that an hourly rate of between $325.00-$350.00 would be reasonable given Melton’s qualifications. Saltsgaver believed that nine hours was spent up through the date of settlement and that the remaining post-confession of judgment hours were also awardable and reasonable. Additionally, Saltsgaver testified that Melton was entitled to be compensated for his time spent in giving his deposition in an expert capacity, but only for one hour of the three hours billed.

As to the balance of the hours, Saltsgaver testified that this time was compensable because it related to the requests for admission, stating, “assuming that Mr. Melton were to prevail on some or all of those requests for admission at the hearing, then all of the time associated with proving — with drafting and proving up those requests for admissions would be compensable time for Mr. Melton through this hearing that we’re having now.” Lastly, Saltsgaver testified that the relevant market required a multiplier because the carrier had the benefit of ADP and that Melton had a pure contingency fee contract with no way of mitigating the risk of non-payment.

On October 15, 2003, the trial court entered final judgment awarding fees and costs to counsel for Physician’s Injury Care in the amount of twenty-six hours at $300.00 per hour. The trial court found: (1) Progressive has paid the agreed amount of outstanding no-fault benefits thereby requiring it to pay Melton’s reasonable attorney’s fees and costs in representing Physician’s Injury Care; (2) Melton reasonably expended twenty-six hours in representing Physician’s Injury Care; (3) a reasonable hourly rate to be paid is $300.00 per hour for attorney time; (4) Melton undertook representation of Physician’s Injury Care pursuant to a contingency fee agreement as defined in State Farm Insurance Co. v. Palma, 555 So. 2d 836 (Fla. 1993) concerning the claim for no fault benefits; (5) all of the factors or criteria set forth in Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 818 (Fla. 1990), as well as Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) were present; (6) Physician’s Injury Care’s chance of success at the outset of the case was more likely than not, permitting a multiplier award of between 1 and 1.5 thereby awarding a contingency risk multiplier of 1.25 as appropriate and applicable; (7) accordingly Melton was entitled to recover $9,750.00 in total attorney’s fees; (8) Melton incurred reasonable costs in the amount of $311.31 during his representation of Physician’s Injury Care; and (9) Physician’s Injury Care was entitled to recover $660.00 in expert witness fees for Saltsgaver. The total amount awarded to Physician’s Injury Care for attorney’s fees and costs was $10,721.31.

Standard of Review

Progressive first argues that a multiplier should not be awarded in a case where attorney’s fees are awarded pursuant to a fee-shifting statute and that there must be competent substantial evidence which proves that the relevant market requires the award of a multiplier. It is well settled that the determination of an award of attorney’s fees is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of a clear abuse of that discretion. DiStefano Construction, Inc. v. Fidelity and Deposit Company of Maryland, 597 So. 2d 248, 250 (Fla. 1992); Centex-Rooney Construction Co., Inc. v. Martin County, 725 So. 2d 1255, 1258 (Fla. 4th DCA 1999); Smiley v. Greyhound Lines, Inc., 704 So. 2d 204, 205 (Fla. 5th DCA 1998) (findings of the trial court are clothed with a presumption of correctness and should be affirmed in the absence of a clear abuse of discretion). The test for whether discretion has been abused is one of reasonableness. “[I]f reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).

Once it is determined that attorney fees are awardable, the standard of review with respect to the application of a multiplier is one of abuse of discretion. United Auto Insurance Co. v. Padron, 775 So. 2d 372 (Fla. 3d DCA 2000) and Holiday v. Nationwide Mutual Fire Insurance Co., 864 So. 2d 1215 (Fla. 5th DCA 2004).

Progressive also argues that attorney’s fees may not be awarded for time spent litigating the amount of attorney’s fees. Where the trial court’s decision rests on a pure matter of law that can be evaluated equally as well by the appellate and trial courts, the standard or review is de novo. Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So. 2d 376 (Fla. 5th DCA 1998) (judicial interpretation of state statutes is a purely legal matter and therefore subject to de novo review).

Discussion

Progressive asserts that the trial court erred as a matter of law in enhancing the lodestar fee award with a contingency fee multiplier, in awarding fees for time spent after the underlying dispute was resolved and entitlement to reasonable attorney’s fees had been stipulated to by Progressive, and that the number of hours awarded before settlement of the case are unreasonable and thus an abuse of discretion. Progressive asks this Court to reverse the final judgment of the trial court as excessive and remand with instructions to enter an award in which no multiplier is applied and which does not compensate counsel for Physician’s Injury Care for any time spent proving the requests for admissions, or time spent at counsel’s own factual deposition regarding the time listed in counsel’s fee affidavit, thereby awarding only the lodestar fee figure for the 10.5 hours of work performed to the point of confession of judgment.

Specifically, Progressive argues that: (1) it was error and an abuse of discretion to award a multiplier where there was no competent evidence to prove that the relevant market required a multiplier to obtain competent counsel, and that the multiplier was inappropriate as a matter of law in a case involving a fee shifting statute; (2) the trial court failed to follow long-standing precedent where there was no competent evidence to support the factual findings; (3) the trial court erred in awarding attorney’s fees for time spent after Progressive had stipulated that counsel for Physician’s Injury Care was entitled to reasonable attorney’s fees and no multiplier should be applied to the time after Progressive confessed judgment for the reason that a court may not award fees for time spent litigating the amount of a fee; (4) it was legal error to award an expert fee to Melton for his deposition because he was counsel for the plaintiff, Physician’s Injury Care, and was not an expert and if such expenses were taxable, they would be costs and not subject to a multiplier; (5) it was legal error to award attorney’s fees based on the requests for admissions, as the issues raised by the requests were the core, hotly contested issues in the case; and (6) the trial court abused its discretion in awarding twenty-six hours to counsel for Physician’s Injury Care in this very simple case that settled before any defense was presented.

Physician’s Injury Care argues that the trial court did not abuse its discretion in awarding twenty-six hours to counsel, that a contingency risk multiplier was justified based on competent substantial evidence, and in awarding a multiplier on the total amount of hours awarded.

Award of the Contingency Fee Multiplier

Section 627.428, Florida Statutes, authorizes the award of a reasonable attorney’s fee to an insured who prevails against his or her carrier after being required to bring suit to establish a valid claim. Thus, if a dispute is within the scope of this statute and an insured must enforce his or her rights under a policy, and if a judgment is rendered against the insurer, then the insurer is required to pay attorney’s fees for the insured or the beneficiary. See Bell v. U.S.B. Acquisition Co., Inc., 734 So. 2d 403 (Fla. 1999). Here, Progressive effectively confessed judgment by stipulating that Physician’s Injury Care was entitled to reasonable attorney’s fees, and paying the outstanding amount owed under the policy.

Once it is determined that attorney’s fees are awardable, as stipulated to by the parties at the fee hearing, the standard of review with respect to the application of a multiplier is one of abuse of discretion. Progressive argues that a multiplier was not warranted in a case in which fees are awarded pursuant to a fee shifting statute such as section 627.428, Florida Statutes. Progressive cites to two recent cases, Holiday v. Nationwide Mutual Fire Insurance, 29 Fla. L. Weekly D278 (Fla. 5th DCA January 23, 2004) and Sarkis v. Allstate Insurance Company, 28 Fla. L. Weekly S740 (Fla. October 2, 2003) to support its argument. The Holiday court certified to the Florida Supreme Court the following question as presenting an issue of great public importance:

In light of the Supreme Court’s decision in Sarkis, may a multiplier be applied to enhance an award of attorney’s fees granted under a fee-shifting statute such as section 627.428, Florida Statutes (2002).

Noting that the Florida Supreme Court has not answered the question certified by the Sarkis court, nor has it overturned the decisions of State Farm Fire & Casualty Company v. Palma, 629 So. 2d 830 (Fla. 1993) and Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990) which both specifically approved multipliers on fees awarded pursuant to section 627.429, Florida Statutes, the award of a multiplier in this case was appropriate.

To determine whether a contingent risk multiplier may be applicable to fees awarded under section 627.428, Florida Statutes, the trial court must evaluate the factors set out in Standard Guaranty Insurance Co. v. Quanstrom, 555So. 2d 828 (Fla. 1990). In Quanstrom, the Florida Supreme Court identified three different categories of cases in which attorney’s fees may be awarded by a court. The Florida Supreme Court concluded that the second of those categories, which applied principally to tort and contract cases, including cases such as the present controversy involving an insured and his or her insurance company, is one in which a contingency risk multiplier may be appropriate. In Quanstrom, the Court reaffirmed the principles set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985),with respect to these cases, and added three additional factors to be considered in determining whether a multiplier should be applied:

1. Whether the relevant market requires a contingency fee multiplier to obtain competent counsel;

2. Whether the attorney was able to mitigate the risk of nonpayment in any way; and

3. Whether any of the factors set forth in Rowe are applicable, especially the amount involved, the results obtained, and the type of fee arrangement between the attorney and his or her client.

In the present case, the trial court made specific findings of fact after having heard extensive and conflicting testimony and evaluated the likelihood of success from the outset of the case. Here, there was competent substantial evidence to support the trial court’s decision to apply the multiplier. Duval Utility Company v. Florida Public Service Commission, 380 So. 2d 1028 (Fla. 1980) (competent substantial evidence is such evidence as will establish a substantial basis of fact from which the fact at issue can reasonably be inferred or such relevant evidence as a reasonable mind would accept as adequate to support a conclusion). The trial court was within its discretion to award a multiplier to the reasonable attorney’s fees incurred by Melton.

Progressive next argues that the award of a multiplier required proof that the relevant market necessitates a multiplier to obtain competent counsel. Again, the trial court made factual findings about the likelihood of success at the outset of the litigation. There was competent substantial evidence to support the trial court’s finding that the time spent up to the point of confession of judgment was reasonable and that the relevant market requires a multiplier. The trial court had before it evidence that the relevant market does require a multiplier, that there was no way to mitigate the risk of non-payment, that the maximum results were obtained by Melton and that he represented Physician’s Injury Care on a pure contingency fee contract, and that the case was highly contested with Progressive taking the position that it was not required to pay more than what it had previously paid. The trial court’s decision bears a presumption of correctness. The appellate court should not substitute its judgment for that of the trial judge, who was in the best position to evaluate the testimony and the credibility of the witnesses. Centex-Rooney Construction Co., Inc. v. Martin County, 725 So. 2d 1255, 1258 (Fla. 4th DCA 1999).

Award of Attorney’s Fees Post Confession of Judgment

Progressive contends that the multiplier was inappropriately allowed on Melton’s expert fee and time awarded pursuant to Florida Rule of Civil Procedure 1.380(c), regarding time spent by Melton on the denied requests for admissions. The Florida Supreme Court has expressly held, that the time spent litigating the amount of an attorney’s fee is not recoverable in an attorney’s fee award under section 627.428, Florida Statutes, and this includes litigating the entitlement to a multiplier. State Farm & Casualty Insurance Co. v. Palma, 629 So. 2d 830 (Fla. 1993). Such work inures solely to the attorney’s benefit and cannot be considered services rendered in procuring full payment of the judgment.

However, Florida Rule of Civil Procedure 1.380(c) states:

If a party fails to admit the genuineness of any document or the truth of any matter as requested under rule 1.370 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may file a motion for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making that proof, which may include attorneys’ fees. The court shall issue such an order at the time a party requesting the admissions proves the genuineness of the document or the truth of the matter, upon motion by the requesting party, unless it finds that (1) the request was held objectionable pursuant to rule 1.370(a), (2) the admission sought was of no substantial importance, or (3) there was other good reason for the failure to admit.

Consequently, a court may make an award of reasonable expenses incurred as a result of proving the denied requests for admissions, and that award may include attorney’s fees. The standard of review for the imposition of sanctions pursuant to Florida Rule of Civil Procedure 1.380 is whether there was an abuse of discretion by the trial court. Smith v. Spitale, 675 So. 2d 207, 209-10 (Fla. 2d DCA 1996).

Progressive has cited to case law which holds that the expenses incurred by a successful litigant as a result of the opposing party’s failure to admit requests for admissions may not be assessed against the opposing party for denying a request to admit a hotly-contested, central issue to the case. Arena Parking, Inc. v. Lon Worth Crow Insurance Agency, 768 So. 2d 1107, 1113 (Fla. 3d DCA 2000). This Court agrees that to assess attorney’s fees whenever a party refuses to admit a fact that is the central issue of fact in the case would render prevailing party’s attorney’s fees the rule, rather than the exception. Shaw v. State ex rel. Butterworth, 616 So. 2d 1094 (Fla. 4th DCA 1993). However, in the instant case, the trial court, finding nothing objectionable in the requests for admissions submitted by Physician’s Injury Care, pursuant to Florida Rule of Civil Procedure 1.370(a), directed Progressive to answer the requests for admissions with more than a denial.

Further, the trial court must make findings only if it decides to deny a request for reasonable expenses, including attorney fees, incurred as a result of the failure to admit in response to requests for admission. See Lon Worth, 768 So. 2d at 1112. Here, argues Physician’s Injury Care, the issues raised in the requests for admissions were the core issues in dispute. However, this does not qualify as a reason for Progressive’s failure to admit. Progressive failed to show a good reason, pursuant to Florida Rule of Civil Procedure 1.380(c) for its failure to admit. Under the standard of review, this Court concludes that the trial court had competent substantial evidence before it to award attorney’s fees for the time spent proving the denied requests for admissions.

An award of attorney’s fees pursuant to Florida Rule of Civil Procedure 1.380(c) should only include time spent after a defendant has denied requests for admissions. Of the 15.5 hours noted on Melton’s fee affidavit, only 5.5 hours, plus the hearing time (excluding the 3.0 billed for the deposition) were spent after Progressive denied the requests for admissions. While there was no abuse of discretion in the trial court’s decision to award attorney’s fees as a sanction, the trial court’s findings regarding the number of hours reasonably devoted to such matters are not sufficiently detailed to allow this Court to intelligently evaluate them. Moreover, the amount awarded should be based upon reasonable hourly rates, without the application of any multiplier. See Nordyne, Inc. v. Florida Mobile Home Supply, Inc., 625 So.2d 1283 (Fla. 1st DCA1993).

The factors for determining whether to apply a multiplier apply to obtaining counsel in the first instance, but attorney’s fees awarded as a sanction for rejecting an offer of judgment are awarded after an attorney has already been obtained and agreed to undertake the case, and, thus, the use of a multiplier would not be consistent with the purpose of section 768.79, Florida Statutes, the fee-authorizing statute. Holiday v. Nationwide Mutual Fire Insurance, 864 So. 2d 1215 (Fla. 5th DCA 2004). The same is true where an attorney must expend time proving denied requests for admissions. In sum, those attorney’s fees authorized by the trial court in the instant case as sanctions for objecting to the requests for admissions cannot be subject to a multiplier. Further, only that time actually spent after the requests for admissions were denied are compensable.

Finally, Progressive argues that it is legal error to award an expert fee to Melton for his deposition, regarding his fee affidavit in this case, due to the fact that he is Physician’s Injury Care’s attorney and was not acting as an expert. This argument was unrebutted by Physician’s Injury Care. Melton’s testimony in the deposition consisted of factual information about his time documented in his fee affidavit. If the deposition were compensable, it is as a cost that is taxed to the other party, not a fee to be awarded counsel, and not properly subject to a multiplier. Bystrom v. Mutual of Omaha Insurance, 566 So. 2d 351 (Fla. 3d DCA 1990); Straus v. Morton F. Plant Hospital Foundation, 478 So. 2d 472 (Fla. 2d DCA 1985) (pursuant to section 92.231, Florida Statutes, expert witness fees, at the discretion of the trial court, may be taxed as costs for a lawyer who testifies as an expert as to reasonable attorney’s fees).

It was the bills of the plaintiff’s attorney that were at issue in this case. When an attorney who represented the party entitled to recover fees testifies as to the reasonableness of his or her fees and the necessity of the work performed, he or she is not entitled to an expert witness fee. Gregory Kurdian v. State Farm Mutual Automobile Insurance Co., 7 Fla. L. Weekly Supp. 694a (Fla. 17th Cir. Ct. June 29, 2000). Thus, the one hour of time awarded as expert fees for Melton’s deposition should have been awarded only as a cost, due to the fact that the deposition was necessitated by denied requests for admissions, and not subjected to the multiplier.Attorney’s Fees

Physician’s Injury Care is seeking attorney’s fees pursuant to sections 627.428 and 627.736(8), Florida Statutes, and Florida Rule of Appellate Procedure 9.400. Due to the fact that Physician’s Injury Care did not prevail on all issues in this appeal, an award of appellate attorney’s fees will be limited to only those issues on which Physician’s Injury Care prevailed. Danis Industries Corporation v. Ground Improvement Techniques, 645 So. 2d 420, 421 (Fla. 1994) (allowing for a limitation on the fee award to the extent that the beneficiary has not prevailed on all issues and the degree to which this has extended the litigation or increased its costs).

Conclusion

Progressive has failed to establish that the trial court abused its discretion in rendering the October 15, 2003, judgment regarding the determination of hours awarded and the application and amount of the contingency risk multiplier. The trial court correctly applied all of the factors and criteria set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) and Standard Guarantee Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990) to substantiate the award of a 1.25 contingency fee multiplier. However, the multiplier may only be applied to those hours incurred pre-confession of judgment. Further, while the hours, fees, and costs associated with proving the denied requests for admissions after Progressive denied the requests for admissions are proper, that award cannot be subjected to a multiplier. Lastly, the time associated with Melton’s deposition may not be subject to a multiplier or expert fees, it is only compensable as a cost. All other fees and costs awarded were proper.

Accordingly, it is hereby ORDERED and ADJUDGED that:

1) The trial court’s October 15, 2003, “Final Judgment As To The No Fault Benefits Claim Awarding Attorney’s Fees and Costs” is AFFIRMED in part and REVERSED in part;

2) The attorney’s fee award is REMANDED to the trial court to enter an amended final order consistent with this opinion reflecting the adjusted amount which awards a multiplier only for those hours incurred prior to the confession of judgment, awards fees and costs only for those hours incurred with proving the requests for admissions after Progressive failed to answer the requests, and only awards costs, with no multiplier or expert fees, for the time associated with the deposition of Appellee’s attorney.

2) Appellee Physician’s Injury Care’s Motion for Attorneys’ Fees is GRANTED, the assessment of which is REMANDED to the lower court and is to be limited to those issues upon which Appellee prevailed;

3) Appellee Physician’s Injury Care shall have costs taxed in its favor, if it files a proper motion pursuant to Florida Rule of Appellate Procedure 9.400(a) with the lower tribunal within thirty days of the issuance of the mandate in this matter.

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¹ADP, a third-party vendor, was the company used by Progressive to determine the reasonable charge for the medical services provided to Progressive insureds.

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