22 Fla. L. Weekly Supp. 80b
Online Reference: FLWSUPP 2201GIRAInsurance — Personal injury protection — Attorney’s fees — Attorneys who represented medical provider on contingency basis for first six years of litigation forfeited their claim for attorney’s fees where attorneys withdrew of own volition and substituted new counsel prior to resolution of case
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. MIRAMAR INJURY CENTER, INC., (a/a/o Sandra Giraldo), Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE-10-017018(04). L.T. Case No. COCE-06-004522(55). March 7, 2013. Honorable Gary Cowart, Judge. Counsel: Michael J. Neimand, Office of the General Counsel, Trial Division, Miami, for Appellant. Marlene S. Reiss, Marlene S. Reiss, P.A., Miami, for Appellee.
OPINION OF THE COURT
(O’Connor, Judge.) THIS CAUSE came before the court, sitting in its appellate capacity, upon the appellant, United Automobile Insurance Company’s (“UAIC”) timely appeal. This Court, dispensing with oral argument, having considered the briefs from both parties, the record on appeal, applicable case law, and being otherwise fully advised in the premises, finds as follows:
The instant case is a PIP case wherein the plaintiff/assignee Miramar Injury Center, Inc. (“MIC”) brought suit against the insurer UAIC on February 27, 2003. Three attorneys (the “Attorneys”) represented MIC during the first six years of litigation: Mitchell Garfinkel, Chris Fisher, and Todd Link. On August 28, 2007, the trial court executed an order granting MIC’s substitution of counsel to William Ruggerio. The trial court entered a final judgment in favor of MIC on October 8, 2009. Plaintiff’s motion for attorney fees was filed on October 12, 2009 and a hearing on the motion was held before the Honorable Lisa G. Von Tefs on March 25, 2010 and continued on March 31, 2010. The Attorneys’ motion was granted over UAIC’s objection. UAIC now appeals on the issue of whether the Attorneys are entitled to pre-conflict fees when they were representing MIC on a contingency basis and they voluntarily withdrew from representation before the contingency — the recovery of PIP benefits — occurred.
Where entitlement to attorney fees depends upon the interpretation of a statute, as a pure matter of law, the standard of review is de novo. Bright v. Baltzell, 65 So. 3d 90 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1352a].
It is well settled that “when an attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation.” Faro v. Romani, 641 So. 2d 69 (Fla. 1994). Subsequent to Faro Florida cases have “steadfastly emphasized that the withdrawing attorney forfeits all rights to compensation unless the attorney can show that the client’s conduct made the withdrawal necessary. See, e.g., DePena v. Cruz, 884 So. 2d 1062, 1063-64 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D2307b]; Carbonic Consultants, Inc. v. Herzfeld & Rubin, Inc., 699 So. 2d 321, 324 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D2245a]; Kocha & Jones, P.A. v. Greenwald, 660 So. 2d 1074, 1075 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1787a].” Santini v. Cleveland Clinic Florida, 65 So. 3d 22 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1011a], reh’g denied (July 26, 2011), review denied, 90 So. 3d 272 (Fla. 2012).
Here the Attorneys claim that they were not discharged, nor did they withdraw but merely “substituted the Garfinkel firm out and allowed Bill to take over the file.” (T. 3/25/2010 at 42-43). The counselors filed a Stipulation for Substitution of Counsel, signed by Ruggerio and Link and Garfinkel, on August 29, 2007, that states, in relevant part:
[T]he Law Offices of Todd S. Link, P.A. and Law Offices of Garfinkel, Palmer & Reifler withdraw as counsel for the Plaintiff and the Law Offices of William C. Ruggiero enter as counsel for the Plaintiff herein. (R. at 81)
In Holbrook, the Second District Court of Appeal held that an attorney retained under a contingency agreement forfeits her claim for attorney fees if she voluntarily substituted herself before the resolution of the case. Liberty Mut. Ins. Co. v. Holbrook, 861 So. 2d 1216 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D2830a]. Her claim for fees was deemed waived.
The Attorneys were not discharged by their client but, of their own volition, substituted themselves before the resolution of the case. Both the stipulation and the subsequent order substituting counsel state that the Attorneys are withdrawing and Ruggiero is being substituted in as counsel.
The Attorneys also claim that any fee agreement between themselves and MIC was never put into evidence and is not part of the record on appeal and therefore it cannot be determined to be a contingency order. However, in PIP, an agreement that provides that if the attorney ultimately prevails the attorney would be entitled to a fee which would be the amount the court allowed as an attorney’s fee under Florida Statute § 627.428, rather than a percentage of the recovery, is a contingent fee agreement. Quanstrom v. Standard Guar. Ins. Co., 519 So. 2d 1135 (Fla. 5th DCA 1988).
Accordingly, for the above-stated reasons and after due consideration, it is
ORDERED AND ADJUDGED that the Attorneys were not entitled to attorney fees. Therefore, the trial court’s “Judgment and Order on Plaintiff’s Motion to Set Reasonable Attorney’s Fee and Costs” (R-214-216), dated March 31, 2010, is REVERSED and REMANDED back to the trial court for proceedings consistent with this opinion.
Further it is
ORDERED AND ADJUDGED that pursuant to Fla. R. App. P. 9.400(a) and Florida Statute § 627.428 the plaintiff/appellee is not entitled to appellate attorney fees, and its motion filed on August 5, 2010 for same is hereby DENIED.
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