14 Fla. L. Weekly Supp. 529a
Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — No error to award multiplier where record demonstrates relevant market required multiplier to obtain competent counsel — Award of 2.0 multiplier was abuse of discretion where case involving equitable assignment was not novel or complex
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, vs. RURAL METRO AMBULANCE, INC. a/a/o Ashley Billings, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County, Case No. 04-105-AP. October 31, 2005. Rehearing Denied October 4, 2006. Appeal from County Court Seminole County, Honorable John R. Sloop. Counsel: Betsy E. Gallagher and Michael C. Clarke, Kubicki Draper, for Appellant. Kevin B. Weiss, for Appellee.
(NANCY F. ALLEY, J). Appellant, Progressive Express Insurance Company (“Progressive”) seeks review of the lower court’s Final Judgment Awarding Attorneys’ Fees and Costs. This Court finds that the lower court did not abuse its discretion in awarding a contingency risk multiplier; however, the lower court did abuse its discretion in determining that the chances of success at the outset of this case were “unlikely.”
This Court will not belabor the first issue raised by Progressive regarding the application of a multiplier in the present case. Progressive’s argument asserts that the lower court erred in awarding a multiplier where the Appellee, Rural Metro Ambulance, Inc. (“Rural Metro”), failed to demonstrate that the relevant marketplace required a multiplier to obtain competent counsel. See Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990). To the contrary, the record demonstrates evidence in support of the lower court’s decision.
Conversely, this Court finds that it was an abuse of discretion for the lower court to award a 2.0 multiplier premised upon a finding by the lower court that Rural Metro’s chances at the outset of the litigation were less than 50%. The record reflects and Progressive correctly argues that this case was not “novel or complex.”
Rural Metro, as assignee of Billings, sought to recover PIP benefits for emergency medical services rendered to Billings after Billings was involved in an automobile accident. At the time of the accident, Billings was unable to actually sign any assignment, due in large part to Billings’ injuries which required immobilization, including the use of a backboard. However, Billings indicated in deposition testimony that it was his intent that Rural Metro seek payment directly from Progressive for Rural Metro’s services to include the filing of a lawsuit against Progressive if necessary. Ultimately, Progressive failed to make payment of PIP benefits to Rural Metro within 30 days of receipt of the application for such benefits from Progressive. See Fla. Stat. § 627.736(4)(b). Rural Metro filed suit to recover the benefits on April 22, 2003 and Progressive moved to dismiss arguing that Rural Metro lacked standing as it did not possess a valid (signed) assignment of benefits.
On July 10, 2003, Progressive tendered 100% of the PIP benefits requested by Rural Metro; however, Progressive failed to pay the interest on those benefits. Accordingly, Rural Metro moved for final summary judgment arguing that the tendering by Progressive of the underlying benefits operated as a confession of judgment and required payment of the interest.
A hearing on Rural Metro’s motion for summary judgment and Progressive’s motion to dismiss was held on April 7, 2004. At that hearing Rural Metro presented the deposition testimony of Billings regarding Billings’ intent as well as the Florida Supreme Court case of Boulevard National Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965), wherein the Court stated at page 97-98, “[f]ormal requisites of . . . an assignment are not prescribed by statute and it may be accomplished by parol, by instrument in writing, or other mode, such as delivery of evidences of the debt, as may demonstrate an intent to transfer and acceptance of it.” The lower court relying on the opinion in Boulevard National Bank and the lower court’s own “common sense” granted summary judgment in favor of Rural Metro. Implicit in the lower court’s order was the finding of an equitable assignment of benefits by Billings to Rural Metro.
Notwithstanding the foregoing, Progressive’s attorney and expert witness argued at the subsequent hearing on attorney’s fees that at the time of filing the underlying suit “there was no case law whatsoever in any district. . .that supported the position. . .(being asserted) which was an absolutely, unequivocally unsigned assignment of benefits.” Thus, it was argued that the likelihood of success at the outset was unlikely and a 2.0 multiplier was warranted.
This Court finds the lower court’s award of a 2.0 multiplier is an unreasonable abuse of discretion based on the facts involved in the instant case. At the outset of this case, there clearly existed case law, Boulevard National Bank, supra (later submitted by Rural Metro to the lower court during the summary judgment hearing), supporting the position that an equitable assignment of benefits is reasonable where parol evidence demonstrates an intent to assign and an acceptance of the assignment. Moreover, this Court is hard-pressed to uphold an order finding that Rural Metro’s likelihood of success at the outset of this case was “unlikely,” where the trial court also indicated at summary judgment that Progressive’s position with respect to the assignment defied “common sense.” Such findings are inherently inconsistent.
REVERSED and REMANDED for proceedings not inconsistent with this opinion.
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ORDER DENYING APPELLEE’S MOTION FOR REHEARING
(NANCY F. ALLEY, J.) THIS CAUSE came before the Court upon Appellee’s Motion for Rehearing of this Court’s Order entered on October 31, 2005 [14 Fla. L. Weekly Supp. 529b]. The Court has considered the motion, and being fully advised in the premises, finds
1. While the trial court found the issues in this case to be minimally complex, the facts are neither novel or difficult in the course of litigation.
2. To deem the simple failure to sign the assignment of benefits or to pay interest sufficient to justify the award of a multiplier is an abuse of discretion.
Therefore, it is
ORDERED AND ADJUDGED:
The Appellee’s Motion for Rehearing is hereby denied.
