13 Fla. L. Weekly Supp. 868a
Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — No abuse of discretion in awarding contingency risk multiplier where there was competent substantial evidence on which trial court could make finding that relevant market required multiplier in order for medical provider to obtain competent counsel, even without disputed market research report, error was harmless if court did consider report, and 1.5 multiplier awarded was modest
UNITED AUTOMOBILE INSURANCE CO. a Florida Corporation, Appellant, vs. MILLENNIUM DIAGNOSTIC IMAGING CENTER, a/a/o MIGUEL MEDINA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-298 AP. L.T. No. 02-650 CC 24. UNITED AUTOMOBILE INSURANCE COMPANY a Florida Corporation, Appellant, vs. MILLENNIUM DIAGNOSTIC IMAGING CENTER, a/a/o MARCELLO MENDEZ, Appellee. Case No. 05-299 AP. L.T. 02-349 SP 24. June 30, 2006. Consolidated appeal from the County Court, in and for Miami-Dade County, Jeffrey D. Swartz, Judge. Counsel: Nicole Malic, Office of the General Counsel, Coral Gables, for Appellant. Richard Shuster, Law Offices of Shuster & Saben, LLC, Miami, for Appellee.
(Before, SIGLER, EIG and PRESCOTT, JJ.)
Millennium Diagnostic Imaging Center (hereinafter “Millennium”), as the assignee of insureds Miguel Medina and Marcello Mendez, brought actions in the county court against United Automobile Insurance Company (hereinafter “United”), seeking payment of medical bills for services rendered to Medina and Mendez, United’s insureds, following separate automobile accidents. The complaints sought attorney fees pursuant to § 627.428, and legal assistant fees pursuant to § 57.104.
The Court granted Summary Judgment in each case, and determined Plaintiffs were entitled to an award of attorney fees, reserving jurisdiction to determine the amount to be awarded. In each case, the Plaintiff moved for fees and an award of a contingency fee multiplier.
Following an evidentiary hearing, Senior Judge Charles D. Edelstein entered an Order on July 11, 2005 in the Medina matter reflecting that the parties had stipulated to the reasonable rate for services at $275 per hour, and hours expended at 64.9. The Court applied the factors set forth in Quanstrom1, Rowe2 and the Florida Bar Code of Ethics, 4-1.5. The Court found, in this case, the matter was a category 2 contract action3, and that the Plaintiff was entitled to a contingency fee multiplier of 1.54.
The Court also entered an Order on the Mendez matter reflecting that the parties had stipulated to the reasonable rate for services at $275 per hour. After receiving evidence as to hours, the Court found Plaintiff entitled to 61 hours. In addition, 1.5 hours at a stipulated rate of $225 per hour was awarded to associate Chris Carrazana. Hours for paralegal services were determined to be 1.8 at a stipulated rate of $75.00 per hour. Applying the factors set forth in Quanstrom, Rowe and The Florida Bar Code of Ethics 4-1.5, the Court held this, too, was a category 2 contract action, and awarded a contingency fee multiplier of 1.5. United appealed.
United Auto makes two arguments in support of its contention that the trial court erred. The first argument is that the trial court erred in awarding a contingency risk multiplier where there was no basis for such an award. The second argument is that a multiplier is inappropriate in a PIP case, where plaintiff was not the insured, but a medical provider.
The standard of review to be applied with respect to the application of a contingency fee multiplier is abuse of discretion. Holiday v. Nationwide Mutual Fire Ins. Co., 865 So. 2d 1215 (Fla. 5th DCA 2004).
The issue before the Court was whether the trial court abused its discretion in awarding a contingency risk multiplier. Neither the record, nor argument was sufficient to meet the abuse of discretion standard. There was competent evidence in the record on which the trier of fact could have made his findings, even without reliance on a disputed market research report, which may or may not have been considered. Even if consideration was given to the report, such error was harmless. The multiplier awarded, 1.5, was a modest multiplier to have been applied under the findings of fact made by the trial court.
Accordingly, these matters are AFFIRMED. (SIGLER, J., dissents with opinion.)
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(SIGLER, J., Dissents with opinion.) In calculating a reasonable fee, a trial court is required to determine the number of hours reasonably expended and a reasonable hourly rate for the services, then multiply the two to arrive at the “lodestar” amount. While precluded from considering the contingent nature of a fee when determining a reasonable hourly rate, the factor should be taken into account when determining whether to award a multiplier. “[B]efore adjusting for risk assumption, there should be evidence in the record, and the trial court should so find, that without risk-enhancement plaintiff would have faced substantial difficulties in finding counsel in the local or other relevant market.” Bell v. U.S.B. Acquisition Company, Inc., 734 So. 2d 403 (Fla. 1999). See The Aries Insurance Company v. Aleman, 2002 Fla. App. Lexis 5200, 27 Fla. L. Weekly D920 (Opinion not published in So. 2d).
A review of the record below reveals no substantial competent evidence indicating that Appellee had substantial difficulties in finding counsel to represent it. The testimony of President Garcia of Millennium revealed that he utilizes the services of several law firms, advising that he had stopped using one firm based on incompetence. This evidence fails to meet the first factor required under Quanstrom, 555 So. 2d at 834.5
Failing to meet the first factor as required, this Court finds that the lower court abused its discretion in awarding contingency fee multipliers. Accordingly, I would reverse and vacate the awards of multipliers, and remand the cases to the trial court to enter judgments consistent herewith.
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1Standard Guaranty Insurance Co. v. Quanstrom,555 So. 2d 828 (Fla. 1990).
2Florida Patient’s Compensation Fund v. Rowe,472 So. 2d 1145 (Fla. 1985).
3Standard Guaranty Insurance Co. v. Quanstrom,555 So. 2d 828 (Fla. 1990) set forth the different types of cases requiring different criteria to be applied. The Court held that fee cases should be categorized as follows for purposes of determining which factors need be applied: i.e., 1.) Public policy enforcement cases; 2.) Tort and contract claims; 3.) Family law, eminent domain and estate and trust matters. The Court noted the categories were not all-inclusive.
4Category 2 contract case require the consideration of (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 client. Evidence of these factors must be presented to justify the utilization of a multiplier. Quanstrom,555 So. 2d at 834 [E.S.]
5Whether the relevant market requires a contingency fee multiplier to obtain competent counsel.
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