16 Fla. L. Weekly Supp. 220a

Online Reference: FLWSUPP 163SWART

Insurance — Personal injury protection — Attorney’s fees — Contingency risk multiplier — No abuse of discretion in applying contingency risk multiplier to attorney’s fees award where there is evidence that case was rejected by counsel to which it was referred, case was undesirable case to be taken on contingency fee basis due to adverse judgment in companion case with same EUO issue, and medical provider’s counsel reasonably expected militant resistance from insurer — However, trial court abused its discretion in awarding higher of two multipliers suggested by provider’s expert witness

UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. R.J. TRAPANA, a/a/o Stella Swartz, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 06-1718 CACE (13). Re: 04-729 COCE 56. December 29, 2008. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. June Galkoski Hoffman and Josiane Deschamps Abel, Miami, for Defendant.

OPINION

(LEROY H. MOE, J.) The Appellant argues that the trial court erred in granting the Plaintiff’s motion for a 2.0 attorneys’ fee multiplier after the parties stipulated to a $ 39,253.00 lodestar amount in the PIP case below. The parties agree that the standard of review on appeal is whether the trial court abused its discretion.

The trial court awarded the 2.0 multiplier, finding that the plaintiff had a difficult time obtaining competent counsel without the prospect of a contingency fee multiplier; that there was an unusual E.O.U. no-show defense that had been successfully litigated by the defendant in a companion case; and that the chances for success at the outset of the representation were slightly less than 50-50. The appellant insurer argues that the court abused its discretion in awarding the multiplier because: there was no evidence that the plaintiff had trouble obtaining competent counsel, the decision on the no-show defense in the companion case was not binding on the court below, and that this was just a run-of-the-mill P.I.P. case.

There was some evidence from which the court could have drawn the inference that the plaintiff had trouble obtaining counsel. There was also testimony that the case was undesirable without the possibility of a multiplier, due to the no-show defense and the negative ruling and appeal in the companion case, as well as the reputation that defendant has a “go to the mat” litigation style, which would require counsel for the plaintiff to assume the risk of putting in a substantial amount of time to pursue the claim, although there was a limited chance of achieving success. Reviewing the case precedent on contingency fee multipliers in P.I.P. cases, the court finds that there is a continuum of cases, considering the amount of work required. In United States Security Insurance Company v. Lapour, 617 So.2d 347 (Fla. 3d 1993), the court rejected a 2.0 multiplier in a “run of the mill PIP benefits case,” which required minimal time, labor, or skill. On the other hand, in State Farm Fire & Casualty Co. v. Palma, 555 So.2d 836 (Fla. 1990), the Florida Supreme Court affirmed a 2.6 contingency fee multiplier where the plaintiff expended 650 hours in litigating against an insurer which decided to “go to the mat” over a bill for its precedential value. The instant case was more than a “run of the mill PIP benefits case”; it involved related negative precedent and only a 50-50 chance of success. But, on the other hand, although the defendant is known for its “go to the mat” litigation style, it did not force the plaintiff to expend several hundred hours in the type of “extraordinary circumstances” presented in the Palma case, litigating against an insurer that was trying to set national precedent. Therefore, the plaintiff’s claim for a multiplier is greater than that rejected in LaPour and less than that affirmed in Palma.

In Progressive Express Insurance Company v. Schultz, 948 So.2d 1027 (Fla. 5th DCA 2007), the Fifth District used some additional considerations to reject a 2.5 multiplier, which raised an attorneys’ fee award to almost $200,000.00 in a dispute over a $1,315.00 bill. The court found the evidence presented on the difficulty of finding counsel insufficient, and rejected the fees awarded as unreasonable and against common sense.

In the instant case, there is inferential evidence that the case was rejected by the counsel to which it had been referred. Of particular significance, there was evidence that this was a very undesirable case for an attorney to take on a contingency fee basis. There was already a negative judgment and resulting appeal in another case involving the same E.O.U. issue with the same patient. Both parties referenced the defendant’s frequency of both trial court and appellate court litigation, which “common sense”¹ tells this court would significantly increase the risk of committing the professional time necessary to take this problematic case through trial court and probable appellate litigation, making it especially undesirable and, consequently, a more difficult case in which to obtain representation. Adding to that undesirability, plaintiff’s counsel reasonably expected “militant resistance” from the defendant, which would increase the uncompensated professional time that counsel for plaintiff would expect to have to risk, by taking the case on a contingency fee basis. Based on those factors, this court cannot find that the trial court abused its discretion in awarding a contingency fee multiplier. As the Supreme Court noted in Palma:

Having chosen to stand and fight over this charge, [the insurer], of course, made a business judgment for which it should have known a day of reckoning would come should it lose in the end. . . . [A]lthough defendants are not required to yield an inch or pay a dime not due, they may by militant resistance increase the exertions required of their opponents and thus, if unsuccessful, be required to bear that cost.

But, although the trial court did not abuse its discretion in applying a multiplier, since the facts of the litigation in the instant case were not as extreme as those in Palma, the trial court overstepped its discretion in granting the higher of the two multipliers suggested by plaintiff’s expert. Accordingly, this cause is REVERSED and REMANDED to the trial court to lower the multiplier to 1.5.

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¹See Schultz.