16 Fla. L. Weekly Supp. 392c
Online Reference: FLWSUPP 165GONZ2
Insurance — Personal injury protection — Attorney’s fees — Evidence — Retainer agreement — Where medical provider failed to produce retainer agreement, appellate court is unable to determine whether fee awarded by trial court exceeded that permitted by agreement — Remand to conduct new attorney’s fees hearing in light of retainer agreement — No attorney-client privilege applies to retainer agreement and billing information unless they reveal mental impressions and opinions of counsel — If agreement does reveal privileged information, it may be redacted
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. INTERSCAN INC., a/a/o ADA GONZALEZ, Appellee. Circuit Court, 11th Circuit (Appellate) in and for Miami-Dade County. Case No. 08-014-AP. L.C. Case No. 03-9867 SP 05 08. March 11, 2009. An appeal from the County Court for Miami-Dade County. Counsel: Gedety N. Serralta, for Appellant. Michael I. Libman, for Appellee.1
(Before GERALD D. HUBBART, VICTORIA PLATZER and ROBERT N. SCOLA, JR., JJ.)
(PER CURIAM.) This is an appeal from an order by the lower court awarding attorney’s fees in favor of the Appellee, Interscan Inc. (Interscan). The only issue on appeal is whether the trial court erred by failing to require Interscan to produce the retainer agreement with its attorney or reveal the fee agreement between Interscan and its attorney. For the reasons discussed below, we reverse the order awarding fees with instructions for the lower court to reconsider the amount of fees after considering the attorney’s fee agreement.
On October 21, 2002, Ada Gonzalez (Gonzalez) was involved in a motor vehicle accident. At the time of the accident, Gonzalez was insured by United Automobile Insurance Company (United). Her insurance policy included coverage for personal injury protection (PIP) benefits. Gonzalez was then provided medical services by Interscan under her United Auto Insurance plan. Gonzalez executed an Assignment of Rights in favor of Interscan in regards to benefits due from United.
Subsequently, Interscan filed its Complaint regarding Gonzalez’s PIP benefits claim against United and United filed its Answer. The issue of liability was resolved in Interscan’s favor and Interscan filed its motion for attorney’s fees and costs.
Prior to the trial court’s determination of the attorney’s fee award pursuant to Interscan’s motion for attorney’s fees and costs, United served discovery upon Interscan seeking to obtain a copy of the attorney’s fee retainer agreement between Interscan and its attorney. Interscan objected to the production of the retainer agreement based on relevancy, and refused to produce the retainer agreement. The trial court heard United’s arguments in support of the production of the retainer agreement and also heard Interscan’s objections in support of non-production. The trial court agreed with Interscan and did not require it to produce the retainer agreement. The trial court then proceeded with the hearing to determine the attorney’s fees of Interscan. The parties ultimately agreed to the reasonableness of the hourly rate and number of hours of Interscan’s attorney but United objected to any fee being awarded without consideration of the retainer agreement. The court entered an order awarding the fees based upon the number of hours expended times the hourly rate of Interscan’s attorney. United then timely filed this appeal.
Attorney’s fees may only be awarded by a court pursuant to statute or an agreement of the parties. Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). Section 627.428 of the Florida Statutes permits the award of attorney fees upon judgment against an insurer under a policy executed by the insurer. FLA. STAT. ANN. §627.428 (Wests 2002). An attorney who requests a court-awarded fee has the burden of proving entitlement to that fee. United Services Automobile Association v. Kiibler, 364 So.2d 876 (Fla. 4th DCA 2003).
A trial court should not award attorney’s fees that exceed the fee agreement reached by the attorney and client. Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985); Winterbotham v. Winterbotham, 500 So.2d 723 (Fla. 2d DCA 1987); Royal Belge v. New Miami Wholesale, Inc., 858 So.2d 336 (Fla. 3d DCA 2003); Lane v. Head, 566 So.2d 508 (Fla. 1990); Escalante v. Dopico, 545 So.2d 496 (Fla. 3d DCA 1989). This principle has been applied to fees awarded in cases involving insurance contracts. Royal Belge v. New Miami Wholesale, Inc., 858 So.2d 336 (Fla. 3d DCA 2003). In considering attorney’s fees, a court should consider whether the fee is fixed or contingent. Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (1985). Parties are free, however, to fashion an employment agreement which permits the court to award a reasonable fee in excess of the contingency fee. Id. In this case, because Interscan never produced its retainer agreement, it is unknown whether the agreement called for a fixed fee, an hourly rate fee or for a contingency fee. It is also unknown whether the agreement allowed for the recovery of a fee in excess of the agreement if the fee was awarded by the court against the opposing party.
Because it cannot be determined if the fee awarded by the trial court exceeded that permitted by the retainer agreement, we reverse with instructions for the trial court to conduct a new hearing as to the amount of attorney’s fees in light of the retainer agreement. No attorney-client privilege applies to retainer agreements and billing information unless they reveal the mental impressions and opinions of counsel. Finol v. Finol, 869 So.2d 666 (Fla. 4th DCA 2004). If the retainer agreement does reveal mental impressions and opinions, it may be redacted, with the remaining information unprivileged and, therefore, discoverable.
REVERSED AND REMANDED. (HUBBART, PLATZER and SCOLA, JR., JJ. Concur.)
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1The Appellee failed to file a Brief of Appellee and was precluded from participating in oral argument.
