16 Fla. L. Weekly Supp. 633a
Online Reference: FLWSUPP 167BURTO
Insurance — Personal injury protection — Attorney’s fees — Final judgment awarding attorney’s fees does not contain competent substantial evidence of reasonableness of hourly rate or amount of hours expended where judgment does not contain analysis of Rowe factors — Motion for fees under section 57.105 was properly denied where appeal is not frivolous — There is no entitlement to attorney’s fees for presuit work unless work was necessitated by insurer’s unreasonable conduct
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, vs. CLAUDETTE BURTON, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 07-32265 (08). L.T. Case No. 05-14947 COCE 54. March 27, 2009. Counsel: Thomas L. Hunker, Office of the General Counsel, Coral Gables. Vincent J. Rutigliano, Rosenberg & Rosenberg, Hollywood.
OPINION
(RONALD J. ROTHSCHILD, J.) THIS CAUSE comes before the Court upon the Appellant’s, United Automobile Insurance Company’s, appeal of the trial court’s Final Judgment and Order on Plaintiff’s Motion for Attorney’s Fees and Costs, issued on October 25, 2007. Having reviewed the appellate file, applicable law, and being otherwise fully advised in the premises, the Court hereby decides as follows:
After the underlying case for Personal Injury Protection (PIP) benefits settled, Appellee, Claudette Burton, filed a Motion for Attorney’s Fees and Costs, claiming 147.5 hours of work at a rate of $350.00 per hour. Appellant contested both the number of hours and the hourly rate, and a hearing was held on October 24, 2007. Appellee’s attorney’s fees expert testified 133.7 hours was reasonable, reducing the amount of hours by 13.8 hours. The Appellant’s expert testified that the amount of hours should be reduced to 123.35 hours. The trial court entered a Final Judgment on October 25, 2007 awarding Appellee’s counsel 131 hours at a rate of $350.00 per hour for the Appellee’s attorney, and awarding the Appellee’s expert four hours at a rate of $375.00 per hour.
Appellant appeals the trial court’s Final Judgment claiming it was not supported by competent substantial evidence, and did not contain findings in accordance with the lodestar method of assessing attorney’s fees pursuant to the seminal case of Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla. 1985). This Court is remanding this case to the trial court for the reasons stated below.
An order for attorney’s fees must set forth findings as to the time the attorney has reasonably expended, the hourly rate, and the appropriateness of reduction or enhancement factors as required by Rowe. Parton v. Palomino Lakes Property Owners Ass’n, Inc., 928 So.2d 449, 453 (Fla. 2nd DCA 2006). An order for attorney’s fees that does not contain an examination of these specific factors is fundamentally erroneous on its face. Id. In Baratta v. Valley Oak Homeowners’ Ass’n at the Vineyards, Inc. 928 So.2d 495, 497-498 (Fla. 2nd DCA 2006), the Court found the amended final judgment insufficient to support an award of attorney’s fees, even though it contained findings of the hours reasonably expended and the reasonable hourly rate, because it failed to contain findings pursuant to Rowe, including findings of the “appropriateness of any reduction or enhancement factors.” Based on the failure of the trial court to include the specific findings pursuant to Rowe, the Second District Court of Appeal could not determine that the trial court’s findings on the reasonableness of the hours expended and the reasonableness of the hourly rate were supported by competent substantial evidence. Id. The Final Judgment in the instant case does not contain competent substantial evidence of the reasonableness of the hourly rate or the reasonableness of the amount of hours expended, because it does not contain an analysis of the Rowe factors. See also Zucker v. Zucker, 774 So.2d 890, 892 (Fla. 4th DCA 2001) (reversing the attorney’s fees award because the trial court failed to make the requisite Rowe findings.).
While the trial courts are inundated with P.I.P. suits, and there is an ever increasing demand on the trial court’s time, a Rowe analysis is critical to the rendition of a fair fee award.
Further, the Appellee’s motion for sanctions pursuant to Florida Statute Section 57.105 was properly denied as the appeal is not frivolous. See Williams v. Stanford, 977 So.2d 722, 730 (Fla. 1st DCA 2008) (For attorney’s fees to be awardable, attorney’s fees must have been frivolous when filed). Additionally, an Appellee is not entitled to attorney’s fees for pre-suit work, unless the pre-suit work was necessitated by the insured’s unreasonable conduct. U.S. Fidelity v. Rosado, 606 So.2d 628 (Fla. 3rd DCA 1992). In this case, there was no such finding by the trial court either granting or denying pre-suit Appellee’s attorney’s fees.
ACCORDINGLY, it is hereby,
ORDERED and ADJUDGED that this matter is remanded for the trial court to set forth specific findings pursuant to a Rowe analysis and to also make findings regarding the appropriateness of pre-suit attorney’s fees as is consistent herewith.
