12 Fla. L. Weekly Supp. 131b
Insurance — Personal injury protection — Attorney’s fees — Although sufficiency of findings regarding reasonable hourly rate was not preserved for appeal, court notes that trial court’s finding was sufficient under Florida Patient’s Compensation Fund v. Rowe — Trial court properly ruled inadmissible, as settlement negotiations, a letter from provider’s co-counsel to insurer’s counsel which contained statement which was clearly intended to inform insurer of the strength of plaintiff’s position regarding attorney’s fees with regard to an upcoming fee demand — Contingency risk multiplier — Substantial competent evidence supported lower court’s findings that plaintiff’s chances of success at outset of case were 50%, given legal debate regarding whether insured’s countersignature on claim form was mandatory when form was submitted by assignee — Application of 2.0 multiplier was appropriate — Attorney’s fees generated in litigating appropriateness of multiplier are not recoverable
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. DAMADIAN MRI IN ORLANDO, P.A., a/a/o RICHARD NAVAS, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 03-112-AP. L.T. Case No. 01-CC-1418. September 28, 2004. Counsel: Joseph F. Scarpa, Jr., for Appellant. Michael B. Brehne and Lee M. Jacobson, Law Offices of Michael B. Brehne, P.A., Orlando, for Appellee.
(McIntosh, J.) United Automobile Insurance Co. (United) appeals an attorney’s fee judgment rendered against it in this personal injury protection (PIP) case. The trial court found that a reasonable hourly rate for Plaintiff’s counsel, Michael Brehne, was $300.00 per hour, and applied a contingency risk multiplier of 2.0. Additionally, the trial court awarded 7.7 hours to Plaintiff’s counsel for litigating entitlement to fees and entitlement to a contingency risk multiplier. United argues that substantial, competent evidence does not support the contingency risk multiplier awarded. Additionally, United argues that the trial court erred in failing to make findings as to why a reasonable hourly rate for Plaintiff’s counsel was $300.00 per hour, in ruling inadmissible a letter from Plaintiff’s co-counsel which stated that Plaintiff’s lead counsel routinely received attorney’s fee awards of $275.00 per hour, and in awarding fees for litigating entitlement to a multiplier.
In Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), as modified by Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990), the Florida Supreme Court adopted the federal lodestar approach for the calculation of an attorney’s fee award. The approach involves four distinct steps:
1) Determine the number of hours reasonably expended to litigate the case;1
2) Determine the reasonable hourly rate for this type of litigation;
3) Multiply the figures obtained in steps 1 and 2 to arrive at the lodestar;
4) Determine the contingency risk multiplier, if any, to be applied. If, at the outset of the case, Plaintiff’s likelihood of success was greater than 50%, a multiplier of 1-1.5 should be used. If, at the outset of the case, Plaintiff’s likelihood of success was 50-50, a multiplier of 1.5-2.0 should be used. If, at the outset of the case, Plaintiff’s likelihood of success was less than 50%, a multiplier of 2.0-2.5 should be used. Quanstrom, supra.
REASONABLE HOURLY RATE
United has not preserved for appeal the issue of the sufficiency of the findings regarding the reasonable hourly rate. The record does not indicate that United brought this claimed deficiency to the trial court’s attention by way of a motion for rehearing. Mathieu v. Mathieu, 877 So. 2d 740, 741 (Fla. 5th DCA 2004); Broadfoot v. Broadfoot, 791 So. 2d 584, 585 (Fla. 3d DCA 2001). The rationale for the holding in Mathieu isthat defects in findings should be brought to the trial judge’s attention while his or her memory is still fresh, rather than months later after an appeal has been concluded. Although both Mathieu and Broadfoot were family cases, the rationale seems to be equally applicable to PIP cases, in which the amount of attorney’s fees to be awarded is often the most labor intensive issue in the case.
Even though this issue is raised for the first time on appeal, the court points out that the trial court’s finding of a reasonable hourly rate is sufficient under Rowe. The judgment at issue states that “A reasonable hourly rate for Plaintiff’s attorney, Michael Brehne is 300.00 per hour. . .”2. United argues that Rowe requires the trial court to set forth specific reasons as to why an hourly rate of $300.00 is proper. The Court in Rowe did hold that “In determining the hourly rate. . . the trial court must set forth specific findings.” However, the Court specifically required the trial court to state the grounds for the findings only if the court decides to adjust the lodestar. If the court decides to adjust the lodestar, it must state the grounds on which it justifies the enhancement or reduction. Id. at 1151. The trial court’s finding as to the reasonable hourly rate for Plaintiff’s counsel meets the requirements of Rowe.
ADMISSIBILITY OF LETTER
United also argues that the trial court erred in ruling inadmissible, as settlement negotiations, an August 28, 2003 letter from co-counsel Jacobson to United’s counsel which stated that Mr. Brehne routinely receives an hourly rate of $275.00 per hour. In the first paragraph of this letter, Jacobson stated that his client accepted United’s settlement offer, with qualifications. The statement at issue appears in the second paragraph of that letter. The statement clearly was intended to inform United of the strength of Plaintiff’s position regarding attorney’s fees with regard to an upcoming fee demand. The trial court properly excluded the statement as settlement negotiations.
CONTINGENCY RISK MULTIPLIER
The Plaintiff in this case was a health care provider which had received an assignment of benefits from the insured, Richard Navas. Navas had not countersigned the claim form submitted by Plaintiff for payment. United denied the claim, contending that Navas’ countersignature was required, and since a properly countersigned claim form had not been submitted to it in a timely manner as required by Section 627.736(5)(c), Fla. Stat. (2001), United was not liable for the claim.
Section 627.736(5)(a), Fla. Stat. (2001), provided that an insurer could pay a PIP health care provider directly for services rendered if the injured insured had countersigned the invoice, bill or claim form. At the time that Brehne accepted this case, no appellate court had decided the issue of whether the countersignature requirement applied even when the health care provider had accepted an assignment of benefits from the insured and therefore had “stepped into the shoes” of the insured, or whether it only applied when the health care provider submitted the claim on behalf of the insured, without an assignment. Brehne’s expert witness, Attorney Jeffrey Weiss, testified at the fee hearing that at the time Brehne accepted this case, a number of courts in South Florida had ruled that the insured’s countersignature was mandatory. Mr. Weiss testified that the countersignature requirement was a hotly debated issue and that United was at the forefront of litigating the issue. The issue had not been ruled upon in the Eighteenth Judicial Circuit at the time Mr. Brehne filed suit, and was not resolved (in favor of the health care providers) at the appellate court level until 2003. Star Casualty v. USA Diagnostics, Inc. 855 So. 2d 251 (Fla. 4th DCA 2003).
Approximately two weeks before Brehne filed this suit, a county court in the Eleventh Circuit had ruled that an insured was not required to countersign a claim form submitted by a health care provider to whom the insured had assigned benefits. Dr. Steven Chase v. United Auto. Ins. Co., 8 Fla. L. Weekly Supp. 458a (Fla. Dade Cty. Ct. Apr. 24, 2001).3 United incorrectly argues that this decision was binding on the county court in Seminole County. A decision of a county court is not binding on a county court in a different county, and, in fact, circuit court decisions are binding on the county courts within the circuit. State v. Lopez, 633 So. 2d 1150 (Fla. 5th DCA 1994); Fieselman v. State, 566 So. 2d 768, 770 (Fla. 1990). Therefore, when Mr. Brehne accepted this case, Seminole County courts were free to accept or reject the reasoning in Dr. Steven Chase v. United Auto. Ins. Co., supra. since the circuit courts in the Eighteenth Judicial Circuit had not yet decided the issue. Substantial, competent evidence supports the lower court’s finding that Plaintiff’s chances of success at the outset of this case were 50%. The lower court’s application of a 2.0 multiplier was appropriate.
AWARD OF FEES FOR LITIGATING ENTITLEMENT TO FEES AND ENTITLEMENT TO A MULTIPLIER
Attorney’s fees generated in litigating the appropriateness of a multiplier are not recoverable. Allstate Indemnity Co. v. Hicks, 2004WL 1413923 (Fla. 5th DCA June 25, 2004). Therefore, that portion of the final judgment awarding an undifferentiated amount of hours for litigating entitlement to fees and entitlement to a multiplier is reversed and this cause remanded to the trial court to determine what portion, if any, of the 7.7 hours was spent litigating entitlement to fees, and to award fees for only that portion. The court notes that the trial court did not have the benefit of the recent Fifth District Court of Appeal Hicks decision when it entered this judgment.
Appellee has filed a motion for appellate attorney’s fees, as well as a motion for fees pursuant to Section 57.105, Fla. Stat. (2003), for alleged dilatory tactics undertaken by Appellant in the prosecution of this appeal. Appellee must notice the issue of Appellee’s entitlement to attorneys fees for hearing before this court.
AFFIRMED IN PART and REVERSED IN PART, and REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
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1United has not disputed the number of hours awarded.
2The court also awarded fees to Plaintiff’s co-counsel, Lee Jacobson, but that award is not at issue in this appeal.
3United also argues that at the time Brehne took this case, Plaintiff’s position was also supported by the case of Mochnick v. State Farm Mutual Auto. Ins. Co., 7 Fla. L. Weekly Supp. 1a (Fla. Duval Cir. Ct. Aug. 31, 1999). Mochnick, however, was not on point with the present case. In Mochnick, the insured sued her insurance company, and the issue was whether her assignment of benefits was valid in the absence of her countersignature on the claim form.
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