14 Fla. L. Weekly Supp. 821a

Attorney’s fees — Insurance — Personal injury protection — Expert witness — Abuse of discretion to strike medical provider’s attorney’s fees expert and deny motion for fees in its entirety where there was some evidentiary support for fees in attorney’s testimony regarding hourly rate and hours worked, and expert possessed educational requirements — Any lack of experience on part of expert goes only to weight of expert’s testimony, not admissibility

INJURY CARE INSTITUTE, LLC, Appellant, vs. MERCURY INS. CO. OF FLORIDA, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) for Hillsborough County, Civil Appeals Division. Case No. 06-9968, Division X. L.C. Case No. 05-20926-SC. June 4, 2007. On review of a final order of the County Court For Hillsborough County, The Honorable Eric Myers presiding. Counsel: Bradley Souders, Bradley D. Souders PA, Tampa; and Rand Saltsgaver, Law Offices of V. Rand Saltsgaver, Orlando, for Appellant. Scott Cole, Cole, Scott & Kissane, Miami, for Appellee. David B. Kampf, Tampa.

(FRANK A. GOMEZ, J.) Appellant Injury Care Institute (hereinafter ICI) appeals an order of the trial court denying its motion for attorney’s fees in an underlying personal injury protection (PIP) case [13 Fla. L. Weekly Supp. 1211b]. We conclude that the trial court abused its discretion and reverse its decision.

ICI sued Appellee Mercury Insurance Company (“Mercury”) for PIP benefits. After suit was filed, Mercury paid all claimed benefits. ICI filed a timely motion for attorney’s fees. At the fee hearing, ICI offered the testimony of attorney Mr. Lamoureux, as an expert witness. Notwithstanding the facts that Mr. Lamoureux obtained his law degree from Stetson in 1996, was licensed by the Florida Bar in 1997, worked in a defense firm for several years before undertaking plaintiffs’ representation in 2001, attended fee hearings on the defense side of the subject area, attended seminars on the subject of attorney’s fees, was familiar with the current case law on the subject, had been qualified as an expert in Pinellas County, and had spoken at a seminar on the subject, the trial court disqualified him as a fee expert. The cited reason was insufficient proof of Lamoureux’s expertise. Because the trial court also denied an ore tenus motion for continuance and entered a final order denying fees, ICI brought this timely appeal.

The standard of review on the issue of attorney’s fees is abuse of discretion. Bateman v. Service Ins. Co., 836 So. 2d 1109 (Fla. 3d DCA 2003) (standard of review of attorney’s fees award is abuse of discretion). The standard of review for decisions on evidentiary matters, including witness testimony, is also abuse of discretion. Nardone v. State, 798 So. 2d 870 (Fla. 4th DCA 2001).

A party seeking attorney’s fees is required to present expert testimony as to the value of the services provided. Pridgen v. Agoado, 901 So. 2d 961 (Fla. 2d DCA 2005). A party’s failure to present expert testimony requires the court to not award fees. Snow v. Harlan Bakeries, Inc., 932 So. 2d 411 (Fla. 2d DCA 2006). In light of the foregoing, the disqualification of an expert is, as ICI contends, fatal to its motion for attorney’s fees, although the value of such testimony has recently been called to question. See Island Hoppers, Ltd. v. Keith, 820 So.2d 967, 972 (Fla. 4th DCA 2002).

We could find no Florida case addressing the situation in which the disqualification of an attorney’s fee expert resulted in the court’s refusal to award fees. Cf. Frank J. Pepper, Inc. v. Vining, 783 So. 2d 1160 (Fla. 3d DCA 2001).¹ Here, the proffered expert had 10 years’ experience in PIP practice: four years on the defense side and six or more years on the Plaintiff’s side. He had spoken in a seminar on the topic of fees, and attended several more on the subject. Although he indicated that he had not attended any hearings on his own attorney’s fees in the last five years, he had been qualified as an expert on the matter elsewhere more recently than that.

With respect to the trial court’s disqualification of ICI’s expert, we find that ICI set forth sufficient proof of its witness’s expertise. Rule 1.390, Florida Rules of Civil Procedure defines an expert as one “regularly engaged in the practice of a profession and holds a professional degree from a university or college. . .or one possessed of special knowledge or skill about the subject matter. . . .” ICI’s expert possessed the educational requirements to be qualified as an expert. To the extent inexperience played a role in the trial court’s decision, Rule 1.390 does not require experience and education. Supporting this conclusion is Quinn v. State, 549 So. 2d 208 (Fla. 2d DCA 1989), in which the Second District held that the witness’s inexperience went only to the weight of the expert’s testimony, not to its admissibility. Because the expert’s testimony was the backbone of Quinn’s defense, the appellate court concluded that the trial court abused its discretion in disqualifying the expert, and that the error was not harmless. Quinn persuades us that the trial court abused its discretion when it struck ICI’s expert and denied the motion for fees in its entirety.

Rodriguez v. Campbell, 720 So.2d 266 (Fla. 4th DCA 1998), also supports our decision. In Rodriguez, the appellate court stated that when the record contains some competent substantial evidence supporting the fee or cost order, yet fails to include some essential evidentiary support such as testimony from the attorney performing the services, or testimony from additional expert witnesses, the appellate court will reverse and remand the order for additional findings or an additional hearing. Because ICI’s attorney testified as to his hourly rate and the number of hours, there is some evidentiary support for fees. Conversely, in Rodgriguez, an expert testified as to the value of services; however, the attorneys seeking fees did not testify as to the hours worked or submit time sheets reflecting their hours. We find that the difference in the respective fact patterns is not legally meaningful.

Because our decision requires the trial court to conduct further proceedings, we do not address ICI’s remaining issues. It is therefore

ORDERED that the decision of the trial court is REVERSED and the cause REMANDED for proceedings consistent with this opinion. (STODDARD and CRENSHAW, JJ., Concur.)

__________________

¹In Vining, the court merely indicated that a fee expert had been “properly struck.” It did not set forth reasons for that conclusion. Notwithstanding that, the appellate court did remand to the trial court for entry of an award of fees.