14 Fla. L. Weekly Supp. 882b

Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Where insured’s likelihood of success in PIP case involving numerous defenses including EUO no show issue was unlikely, insured’s expert testified that he would not have taken case and only reason insured prevailed was attorney’s tenacity and litigation skills, and insured’s attorney attempted to mitigate risk of nonpayment by filing multiple summary judgment motions and accepting partial judgment on claim, multiplier of 2.5 is appropriate

SAINTHELENE JEAN, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 01-17043 CC 23. February 20, 2007. Linda Singer Stein, Judge. Counsel: Marc Chandler, for Plaintiff. Orlando Ortiz. Russel Lazega, Law Office of Russel Lazega, North Miami. Rebecca Watford.

FINAL JUDGMENT AWARDING ATTORNEY’SFEES AND COSTS TO PLAINTIFF

This case came before the Court on Plaintiff’s Motion for Attorney’s Fees and Costs. After presiding over an evidentiary hearing, reviewing three volumes of the court files, six transcripts, multiple faxes from the parties and experts submitted post-hearing, legal authorities and being fully advised, the Court’s findings are set forth below.

I. PROCEDURAL BACKGROUND

Plaintiff filed this case on August 7, 2001 to recover PIP benefits for medical treatment received as a result of an automobile accident on August 29, 1999. Defendant filed two different answers, one on September 7 and the other on September 17, 2001, setting forth, inter alia, the affirmative defenses of failure to appear for an Examination Under Oath (“EUO”), failure to appear for an Independent Medical Examination (“IME”), asserting that the services were not Reasonable, Related and Necessary (“RRN”) and that there was a material misrepresentation made in the insurance application.

Both parties conducted discovery and Plaintiff filed and scheduled hearings on several motions for summary judgment. On June 13, 2002, the Court granted Plaintiff’s motion for summary judgment on the IME no show defense.¹ On September 4, 2002, this Court granted partial summary judgment on the material misrepresentation defense because that question was ruled upon in a companion case before a Circuit Court Judge.

The case was scheduled for a jury trial on December 10, 2002. On that morning, Plaintiff’s counsel, Marc Chandler, Esq. and Defendant’s counsel, Rashad El-Amin, Esq. and Martha Hurtado, Esq. were present. However, Plaintiff herself did not appear. Mr. Chandler informed the Court that he had been in communication with his client and that he was surprised that she was not present. Given Mr. Chandler’s representations that his client’s non-appearance was not willful, the Court continued the case and tried another case instead.

On January 16, 2003, the Court entered an order striking Defendant’s affirmative defense of RRN. Accordingly, the only remaining issue for trial was the EUO no show defense. The Court heard argument on Plaintiff’s motion for summary judgment as to that defense on January 30, 2003 and denied the motion, finding that material issues of fact remained regarding whether Plaintiff or her attorney received notice of the EUO’s. This case proceeded to trial and the jury reached a verdict in Plaintiff’s favor on February 3, 2003.

Defendant appealed from the jury verdict (“Appeal 1”). The 11th Judicial Circuit Court, acting in its appellate capacity reversed, finding that this Court should have given a jury instruction that “notice to an attorney is imputed to the client.” United Automobile Ins. Co. v. Jean, 11 Fla. L. Weekly. Supp. 533a (11th Jud. Cir. Ct., Appellate Div. April 6, 2004).

Despite the fact that Appellant listed the incorrect zip code on both return receipts, it received both signed return receipts from Appellee’s attorney’s office indicating that it was delivered. However, Appellant testified that Appellee did not appear for any of the scheduled EUOs, nor did Appellee or her attorney communicate with Appellant regarding an excuse or reason for Appellee’s absence. . . .We find that these facts were essential to establish Appellee’s cooperation or non-cooperation with respect to the EUO. . . .Unless instructed of the law, a jury is without knowledge that an attorney is an agent of a client, and that notice to a client’s attorney is notice to the client. . . .Since the jury was not instructed to consider whether Appellee’s attorney received notice of the EUOs [imputed notice], we must conclude that the jury only considered whether Appellee received personal notice of the EUOs.

Id. Therefore, the case was remanded for a new trial on the EUO no show issue.

Prior to the mandate from the appellate court, on August 15, 2003, this Court had entered an order in favor of Plaintiff on her Motion for Attorney’s Fees (“Fee Order 1”). In that order, the Court awarded Plaintiff 100 hours to take the case from inception to jury verdict at $250 per hour for a total of $25,000, plus an expert fee of $2000 and costs in the amount of $1,333.30. Defendant appealed from that order as well (“Appeal 2”). As a result of the appellate court’s reversal of the underlying verdict (Appeal 1), the attorney’s fee order was also reversed. Plaintiff then filed a Writ of Certiorari from Appeal 1 to the Third District Court of Appeal, which was denied sometime in January of 2005.

Following Appeal 1 and Appeal 2, on August 2, 2005, this Court issued an order rescheduling the case for jury trial for January 10, 2006. On October 21, 2005, Plaintiff filed a new motion for summary judgment on the EUO issue. In that motion, Plaintiff contended that her attorney did not receive the first two EUO notices. Plaintiff explained that not only were the notices sent to the wrong zip code, but, that at the time the notices were sent, Mr. Chandler was not her attorney for this matter. Rather, Mr. Chandler represented Plaintiff in connection with another lawsuit (“Third Party Claim”). Defendant assumed that because Mr. Chandler represented Plaintiff in the Third Party Claim that he also represented her for this matter. Defendant’s assumption was incorrect. Therefore, by sending notices to Mr. Chandler instead of directing them to Plaintiff herself, Defendant failed to properly notify Plaintiff of the EUO’s. Plaintiff’s motion was supported by both the Plaintiff and Mr. Chandler’s affidavits.

In addition, Mr. Chandler attested that he received a subsequent notice to attend an EUO, but informed Defendant that Plaintiff was unavailable and sought a rescheduled date. Defendant refused to reschedule. Based upon these contentions, Plaintiff argued that she did not unreasonably refuse to attend an EUO.

Plaintiff’s motion for summary judgment was considered by the Court at the pre-jury conference on December 13, 2005.² This Court granted the motion in part, finding Defendant liable for those bills that contained charges for services rendered prior to the November 13, 1999 EUO date. Thus, the only remaining issue was the EUO defense as to those bills that accrued after November 13, 1999.³

On January 4, 2006, Plaintiff filed a Motion for Continuance of Trial Date as a result of Defendant’s anticipated appeal of this Court’s order granting Plaintiff’s motion for summary judgment which was announced in open court on December 13, 2005. Plaintiff agreed to the entry of a final judgment on the part of the claim to which the Court granted summary judgment in an effort to minimize the risk of non-payment. The Court signed the Order and also a Final Judgment in the amount of $6,329.39 on January 17, 2006. Defendant appealed on January 27, 2006 and Plaintiff filed a notice of cross-appeal on February 6, 2006 (together called “Appeal 3” herein). Defendant subsequently filed a voluntary dismissal of Appeal 3, which was acknowledged by the appellate court on June 8, 2006. Plaintiff did not pursue its cross-appeal.

Plaintiff seeks attorney’s fees and costs for all of the proceedings pursuant to section 627.428, Fla. Stat. The Court held an evidentiary hearing and took testimony from Plaintiff’s counsel, Marc Chandler, Esq., Plaintiff’s expert witness, Russel Lazega, Esq., and Defendant’s expert, Rebecca Watford, Esq. Due to the numerous appeals and vigorous arguments presented by both sides, the Court reserved ruling to review the evidence and legal authorities.

The Court permitted the record to remain open for either party to submit any legal authorities on the question of the application of a multiplier. The Court has reviewed and considered any cases provided.

II. ROWE ANALYSIS OF DETERMINING ATTORNEYS’ FEES

The Florida Supreme Court has adopted the test set forth in Rule 4.1-5, Rules Regulating The Florida Bar, which enumerates factors for determining appropriate attorney’s fees. Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828, 830 (Fla. 1990) and Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985).

Factors to be considered as guides in determining a reasonable fee include the following:

(1) The time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) The likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) The fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature;

(4) The significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained;

(5) The time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client;

(6) The nature and length of the professional relationship with the client;

(7) The experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and

(8) Whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client’s ability to pay rested to any significant degree on the outcome of the representation.

Rule 4-1.5(B); Quanstrom, 555 So.2d at 830 n. 3.

The application of these factors, in the context of the present case, is discussed below.

1. (a) The time and labor required, (b) the novelty, complexity and difficulty of the questions and c) the skill requisite to perform the legal service properly.

The Court, after presiding over a jury trial, many hearings on the motions for summary judgment and having reviewed the pleadings, transcripts, exhibits, appellate order and the testimony of the attorneys at the fee hearings, finds that this was a difficult and, in some respects, complex case. At the outset, there were multiple issues, including: a) misrepresentation, which was not resolved until a circuit court judge in a companion case determined that issue; b) IME no show, which was still an issue through the day of the first trial setting when the case was first continued; c) RRN, which was contested and required the Court to rule on the issue; and, d) EUO no show, which resulted in reversal and remand based upon a jury instruction that the appellate court found was required.

At every stage, both sides fought vigorously on each of these issues. Ironically, Defendant’s expert argued at the fee hearing that the Court should have granted summary judgment in favor of Plaintiff on the EUO defense before the jury trial. Defendant’s expert reasoned that the defense should have failed because the zip code was wrong and neither Plaintiff nor her counsel was served with the EUO notices. Of course, such a position completely contradicts Defendant’s position at the jury trial, before the appellate court on all three appeals and on remand.

Clearly, the time and labor required by Plaintiff’s counsel was enormous, given the multiple summary judgment and attorney’s fee hearings and multiple appeals.

2. The likelihood that the acceptance of the particular employment will preclude other employment by the lawyer.

This factor is inapplicable.

3. The fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature.

The Court awarded Mr. Chandler $250 per hour in Fee Order 1. Mr. Lazega argues that Mr. Chandler is entitled to an increase in his fee to $350 per hour, now that the underlying judgment is final. Thus, Mr. Chandler seeks $350 per hour for all time expended in the trial court and appellate courts. Defendant contends that the $250 per hour awarded by the Court in Fee Order 1 should not be changed and that $250 per hour is reasonable for all work in the trial court. Defendant argues that Plaintiff is not entitled to any fees for work on Appeal 1, since Defendant prevailed on appeal and also is not entitled to any work on Appeal 3, since Plaintiff cross-appealed. Defendant also argues that Plaintiff should not be compensated for the Petition for Writ of Certiorari filed by Plaintiff after Appeal 1 to the Third District Court of Appeal, which was denied. Defendant concedes some time for Appeal 2 from Fee Order 1 since Defendant dismissed the appeal.

4. The significance of, or amount involved in the subject matter of the representation, the responsibility involved in the representation, and the results obtained.

Plaintiff ultimately received a Final Judgment in the amount of $6,329.39, plus interest. Plaintiff, however, did not collect on the judgment until the Court issued an Order Releasing Funds to Plaintiff from the Defendant’s Supersedeas Bond in the amount of $7,468.68 on January 23, 2007.

5. The time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client.

This factor is not applicable.

6. The nature and length of professional relationship with the client.

Sometime between August 29 and September 16, 1999, Mr. Chandler was retained by Plaintiff to represent her in a third-party action arising out of the accident at issue in this case. Mr. Chandler did not represent Plaintiff in this case until August 2000.

7. The experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services.

Mr. Chandler has been practicing law since 1995 and has handled between 25 to 30 jury trials. He has experience in PIP cases, as well as those involving motorcycle accidents and catastrophic injuries.

The Court has reviewed the time sheets submitted by Plaintiff’s attorney and determines that the following hours are reasonable.

Fee Order 1, which includes the time considered by the Court for all time expended by Mr. Chandler in the underlying litigation before Appeal 1:The Court finds that 100 hours at $250 per hour is still reasonable and incorporates the discussion regarding the Rowe factors 1-7 in its Fee Order 1 herein. The Court heard testimony at the first attorney’s fee hearing and finds that there is no reason to increase either the amount of hours or fee charged for that period of time.

Appeal 1:Both parties agree that the status of the law at this time precludes an award of fees to the party who did not prevail on appeal. Plaintiff asks the Court to enter a conditional award of fees. The Court denies that motion.

Appeal 2:This is the time expended on Defendant’s appeal of this Court’s Fee Order 1. Defendant subsequently dismissed its appeal after the 11th Judicial Circuit Court acting in its appellate capacity reversed and remanded the case based upon the jury instruction issue. The appellate court explicitly entered a “reversal of the award of attorney’s fees.” United v. Jean, Id. Therefore, despite Defendant’s dismissal of the appeal following Appeal 1, Plaintiff was not the prevailing party and cannot be awarded fees.

Petition for Writ of Certiorari:The Third District Court of Appeals denied Plaintiff’s petition, and, therefore, Plaintiff cannot be awarded fees for this time.

Second trial proceedings after remand: Plaintiff seeks 27.83 hours at $350 per hour based upon his increased skill, experience and the continuous legal proceedings that were required in order to finally obtain a judgment in favor of Plaintiff. At the second fee hearing, Defendant argued that the first jury trial was actually unnecessary, since the EUO issue should have been resolved in Plaintiff’s favor. Defendant’s expert did not know that Plaintiff had filed, and the Court denied her motion for summary judgment on the EUO defense before the jury trial was held. Indeed, the facts did not fully materialize on the EUO defense until the case was tried by a jury and the appellate court made its determination that the case turned upon notice to Plaintiff’s attorney. Certainly, Plaintiff’s hours were well-spent on preparing a very detailed motion with exhibits and affidavits, which resulted in a Final Summary Judgment the second time around. The Court further finds that Plaintiff’s increased hourly rate is justified in light of his experience and the quality of work following the appeals.

Appeal 3: Cross-appeals: Neither party prevailed, and, accordingly, this time is not compensable.

Time for Pursuing Attorney’s Fees:This time is not compensable.

Accordingly, Plaintiff is entitled to 100 hours at $250 ($25,000) per hour plus 27.83 hours at $350 per hour ($9,740.50), for a lodestar of $34,740.50.

8. Whether the fee is fixed or contingent.

Plaintiff’s agreement with counsel was based upon a contingency fee arrangement. Plaintiff is seeking a contingency risk multiplier of between 2.0 to 2.5, claiming that the likelihood of success at the outset was minimal, given the difficulty of the EUO issue, in particular and in light of all the factors outlined herein.

III. CONTINGENCY FEE MULTIPLIER

Quanstrom provides that in contingency fee cases, the trier of fact must consider whether or not to apply a multiplier to the lodestar figure.

The range of available multipliers is determined as follows:

If the trial court determines that success was more likely than not at the outset, it may apply a multiplier of 1 to 1.5; if the trial court determines that the likelihood of success was approximately even at the outset, the trial judge may apply a multiplier of 1.5 to 2.0; and if the trial court determines that success was unlikely at the outset of the case, it may apply a multiplier of 2.0 to 2.5.

Quanstrom, 555 So.2d at 834.

[T]he. . .court should [also] consider the following factors in determining whether a multiplier is necessary: (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 (emphasis added). Thus, all three of the above factors must be demonstrated for a multiplier to be applied.

In light of the above analysis, the Court has re-considered that part of its ruling in Fee Order 1 on determining whether to apply a multiplier. The Court finds that Plaintiff has demonstrated that this case is appropriate for the application of a contingency risk multiplier.

First, the Court finds that success was unlikely at the outset of the case, potentially warranting the application of a multiplier of 2.0 to 2.5. Plaintiff had to overcome numerous defenses, none of which were resolved without vigorous litigation, hearings and appeals. Moreover, Defendant was given a second opportunity to pursue the EUO defense as a result of Appeal 1. This left Plaintiff in the likely position of losing the entire case on a question of fact with regard to whether Plaintiff had notice of the EUO settings and refused to attend. Indeed, Defendant continued to maintain its position that the EUO defense was viable, even after the Court entered a Final Summary Judgment and pursued the issue in Appeal 3.

Second, Mr. Chandler and Mr. Lazega testified about the difficult nature of this case and the seemingly insurmountable EUO no show issue. Mr. Lazega has been practicing for 10 years and has handled thousands of PIP cases. He stated that he would not have taken this case and that the client was “not easy” to deal with. In fact, the EUO defense itself turned upon whether Plaintiff failed to cooperate with the Defendant in refusing to attend an EUO. Mr. Lazega also testified that the case was undesirable and required a lawyer with experience and skills to meet the challenges put forth by the defense. Therefore, the relevant market required a multiplier to obtain competent counsel.

The evidence must clearly demonstrate that “plaintiff would have faced substantial difficulties in finding counsel in the local or other relevant market.” Bell v. U.S.B. Acquisition Co., 734 So.2d 403, 413 (Fla. 1999) (Overton, specially concurring).⁴ A multiplier is appropriate in this case. Plaintiff’s expert testified and the record reflects that this was not a routine case. See United Automobile Insurance Co. v. Kendall South Medical Center, 13 Fla. L. Weekly Supp. 688a (11th Jud. Cir. Ct., Appellate Div. April 25, 2006), cert. denied, 932 So.2d 207 (Fla. 3rd DCA 2006).

Kendall addressed the type of evidence required to support the conclusion that Plaintiff had difficulty obtaining competent counsel.

Responding to concerns raised by United Auto as to whether the Appellees must provide specific evidence of their substantial difficulties in finding counsel in the local or other relevant market, [Plaintiff’s expert witness] testified that this contention is theoretically unsound. [The expert witness] noted that this assumes that clients have adequate information concerning the legal market. Referencing Flores v. Mercury Casualty Co. __Fla. L. Weekly Supp. __ (Fla. 11th Cir. Ct. 2004) (unpublished) [affirmed, Mercury Cas. Co. v. Flores, 905 So.2d 179 (Fla. 3rd DCA 2005), rev. denied, 928 So.2d 335 (Fla. 2006)], a previous case in which [he] served as an expert witness, [he] noted that the eleventh judicial circuit has accepted his expert opinion that clients cannot identify which particular lawyer is competent to handle their particular problem. Thus, as a general rule, the public is regarded as unable to accurately evaluate a legal claim, and therefore, must rely on the lawyer’s assessment of the case. [Footnote]³:

³We concur. In [Pennsylvania v.] Delaware Valley [Citizen’s Council for Clean Air] (II), [483 U.S. 711 (1987)]. . .a case in which Quanstrom was premised upon, Justice O’Connor acknowledged the difficulty of assessing the appropriate market. She ruled that an enhancement of the lodestar fee must be based on the market’s treatment of the contingency case as a class rather than on a case-specific assessment. Id. at 731. Therefore, in the relevant market context, obtaining legal counsel is not based on the specific difficulty incurred by the individual party, but on a lawyer’s unique position to gauge at the outset the risk presented by a particular class of cases.

Id. (Emphasis added). In another recent decision, United Automobile Insurance Company v. Millennium Diagnostic Imaging Ct., a/a/o Toro, Case No. 02-187 AP (11th Jud. Cir. Ct., Appellate Division, November 22, 2006), the Court stated:

Here Plaintiff did not testify at the fee hearing. There was testimony provided in this instance that neither the plaintiff’s counsel nor its expert would have taken this case, but for the prospect of a multiplier. Furthermore, the testimony was offered that [the] relevant market dictated the application of a multiplier.

However, the Court found that “in this instance” the evidence did not support the application of a multiplier. Id.

Millennium is inapposite for several reasons. First, there is no discussion of the extent of the experience of the expert witness in that case. Here, Plaintiff’s expert witness, Mr. Lazega, has not only handled thousands of PIP cases, but has written a treatise on PIP law which is distributed nationally and is updated on a regular basis. West’s Florida Motor Vehicle No-Fault Law, Personal Injury Protection (PIP). Mr. Lazega also lectures throughout the state on PIP issues. He testified that based upon the defenses which depended upon Plaintiff’s cooperation in attending EUOs and IMEs, he would not have taken this case. Mr. Lazega further attested that the only reason Plaintiff ultimately prevailed was due to Mr. Chandler’s tenacity and litigation skills. Based upon Mr. Lazega’s credentials and extensive expertise in the field, his opinion carries great weight in assessing the critical factor of whether Plaintiff would have had substantial difficulties in finding competent counsel.

Second, Millennium does not address in detail the other Rowe factors that led the Court to its determination. See discussion of Rowe factors in this case, above.

Finally, it is clear that neither party cited to the Court the case of United v. Kendall. Had the Millennium court been aware of the Kendall case, it would have had the opportunity to distinguish, follow or explain the differences in the evidence.

On the other hand, United v. Kendall is on point factually and binding upon this Court. Thus, those cases cited by Defendant’s expert from the Fifth District Court of Appeals are not applicable. In any event, Tetrault v. Fairchild, 799 So.2d 226 (Fla. 5th DCA 2001) involved an attorney’s fee award based upon an offer of judgment, which is not at issue here. So too, the facts in Progressive Express Ins. Co. v. Schultz, Case No. 5D06-444 (Fla. 5th DCA October 20, 2006) [31 Fla. L. Weekly D2610a] are distinguishable. In that case, the Court found that the hourly rate and total fee award were neither reasonable nor supported by any competent evidence. Conversely, here, there is ample evidence that this case was difficult from the onset and onerous throughout. Plaintiff was required to pursue the case during two trial stages and numerous appeals. Mr. Chandler attempted to mitigate the risk of non-payment by filing multiple summary judgment motions and even accepting a judgment on part of the claim so that Plaintiff could obtain some recovery.

Based upon the findings herein, the Court finds that a multiplier of 2.5 is appropriate. Therefore, the fee of $34,740.50 times 2.5 equals $86,851.25, is awarded to Plaintiff.

IV. EXPERT FEE

Plaintiff’s expert seeks the $2,500 awarded from Fee Order 1 and incorporated herein and an additional 3.5 hours at $350 per hour for the second fee hearing, for a total of $3,725. Defendant did not object and the Court finds that Mr. Lazega’s requested time is reasonable.V. COSTS

Plaintiff seeks total costs of $1,723.30, including those from the first trial period. Defendant objects to the cost of an interpreter and questions why such a cost has been requested. The Court’s notes from the jury trial in February 2003 reflect that an interpreter was brought in by Plaintiff to assist a witness in testifying. Accordingly, the Court finds that all of the costs are compensable.

VI. CONCLUSION

FINAL JUDGMENT on attorney’s fees is entered for Plaintiff’s counsel, Marc Chandler, Esq., in the amount of $86,851.25, plus costs of $1,723.30 and the expert fee to Russel Lazega, Esq. of $3,725, which shall accrue interest at 11% per annum, for which let execution issue.

__________________

¹Defendant had also filed a motion for summary judgment on the IME no show on October 30, 2001. Although Defendant scheduled its motion for a prior date, it was taken off calendar and Defendant did not reschedule its motion for another hearing.

²At that hearing, Defendant conceded that the only remaining issue for the jury’s determination was the EUO no show defense (see transcript, December 13, 2005, p. 17).

³Notwithstanding Plaintiff’s arguments as to whether she or her counsel received notice, the first scheduled EUO by Defendant was for November 13, 1999 (see transcript, December 13, 2005, p. 13).

⁴Rowe and Quanstrom clearly permitted the application of a multiplier to fees based upon statute. Accordingly, this case falls within the scope of those cases, as Plaintiff’s request for fees is based upon a statute. The Bell court found that Rowe and Quanstrom “did not differentiate between court-awarded fees authorized by statute and court-awarded fees authorized by agreement of the parties.” Id. at 406. Therefore, Bell clarified those cases in determining that a multiplier was permitted in breach of private contract cases where the “evidence in the record supports the need for one”. Id. at 409.