22 Fla. L. Weekly Supp. 659a

Online Reference: FLWSUPP 2206WINDInsurance — Personal injury protection — Attorney’s fees — Contingency risk multiplier — Appeals — Claim that trial court erred in considering likelihood of success as factor in determining appropriateness of multiplier was preserved for appeal where insurer repeatedly apprised trial court of putative error — Error not invited by single statement that likelihood of success might be factor if there was testimony on issue — Likelihood of success at outset of case is factor to be considered in determining amount of multiplier, not appropriateness of imposing multiplier — However, error was harmless where there was competent substantial evidence to support application of multiplier under correct legal standard

WINDHAVEN INSURANCE COMPANY, Appellant, vs. ROOSEVELT REHAB & CHIROPRACTIC, INC., as assignee of ZCHECIRE MARIE DONARYE, Appellee. Circuit Court, 4th Judicial Circuit (Appellate) in and for Duval County. Case No. 16-2014-AP-00004-XXXX-MA, Division FM-C. L.T. Case No. 16-2010-CC-06772-XXXX-MA, Division G. December 5, 2014. Appeal from the County Court, in and for Duval County. Honorable Scott Mitchell, Judge. Counsel: Michael Glass, Jacksonville; and Caryn L. Bellus, Miami, for Appellant. D. Scott Craig, Ellis Peetluk, and Rick Sichta, Jacksonville, for Appellee.

OPINION

(McCALLUM, Judge.) This matter is before this Court upon direct appeal from the Duval County Court, where the Order and Final Judgment Awarding Attorneys’ Fees and Costs was entered on December 11, 2013. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c).

I. Factual Background and Procedural History

On December 11, 2013, the trial court entered an Order and Final Judgment Awarding Attorneys’ Fees and Costs which awarded Appellee, the Plaintiff in the underlying action, attorneys’ fees and applied a multiplier of 2.0 in calculating those fees. On appeal, Appellant asserts that the trial court erred in imposing a multiplier of 2.0 in calculating Appellee’s attorneys’ fees.

II. Standard of Review

“[T]he standard of review with respect to the application of a multiplier is one of abuse of discretion.” Holiday v. Nationwide Mut. Fire Ins., 864 So. 2d 1215, 1218 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D278a]; see Bank of New York v. Williams, 979 So. 2d 347, 348 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D1005a]. The reviewing court should determine whether the multiplier is supported by competent, substantial evidence. Eckhardt v. 424 Hintze Mgmt., LLC, 969 So. 2d 1219, 1223 (Fla. 1st DCA 2007) [32 Fla. L. Weekly D2966a].

III. Application of Standard of Review

Appellant argues the trial court erred in applying the 2.0 multiplier to the attorneys’ fees awarded. Specifically, Appellant avers that: (1) the trial court applied the wrong legal standard in determining whether Appellee was entitled to a multiplier; and (2) even under the correct legal standard, the evidence was insufficient to support a multiplier.

A. Whether the Trial Court Applied the Wrong Legal Standard

Appellant suggests the trial court applied the wrong legal standard in determining whether Appellee was entitled to a multiplier. Specifically, Appellant asserts that the trial court should not have considered the case’s likelihood of success in determining whether a multiplier was necessary. Appellant maintains that only after the court determines a multiplier is necessary may it then consider the likelihood of success to determine how much of a multiplier to apply.

1. Preservation of Issue for Appeal

The first issue this Court must address is Appellee’s assertion that this claim was not preserved for appeal. Appellee asserts that not only did Appellant fail to object to the trial court’s consideration of the factor, but that Appellant invited the error by agreeing that it was a relevant factor.

At the hearing on Appellee’s Motion for Attorney’s Fees, the trial court heard from both parties on when it is appropriate for the court to consider the likelihood of success factor. Appellant began by asserting the same argument he makes on direct appeal that the likelihood of success factor can only be considered to determine how much of a multiplier to apply after the court has determined that a multiplier is necessary. The following dialogue ended Appellant’s part in the discussion:

THE COURT: Do I consider — getting back to my initial question: Do I consider how good or how bad their case is from their standpoint at the outset in determining the ability to hire other counsel? Is that something for me to consider?

[APPELLANT]:I did not read that into [sic] the cases I read.

THE COURT: Well, wouldn’t an attorney be much more willing to take a PI case where a trucking company hit a physician and he can’t operate anymore versus an uninsured motorist who hits an unemployed worker? Isn’t there a difference from the attorney’s standpoint?

[APPELLANT]:I think it’s just hard, Judge, to analyze it in that vacuum. I mean, every case I think has — a majority of cases all have challenges to them.

. . . . .

THE COURT: Under the case law, under the case law, do I consider [the likelihood of success] factor? That’s my question.

[APPELLANT]: I don’t — the way I see the case law is you first have to determine if he could not have found other counsel. That has to be proven to you, and maybe that’s a factor, but you don’t have that evidence to consider. . . . It probably would be a factor if you had the testimony, but without the testimony, you don’t have anything.

Appellee avers that Appellant’s last statement invited the error and that this issue was not preserved for appeal.

There are no “magic words” necessary to preserve an issue for appeal. Corona v. State, 64 So. 3d 1232, 1242 (Fla. 2011) [36 Fla. L. Weekly S247a]. Rather, to preserve an issue for appeal, the objection or argument must simply be “ ‘specific enough to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.’ ” A.P.R. v. State, 894 So. 2d 282, 286 (Fla. 5th DCA 2005) [30 Fla. L. Weekly D247c] (quoting Williams v. State, 414 So. 2d 509 (Fla. 1982); see also Corona, 64 So. 3d at 1242. A party may not, however, complain about an error that “ ‘he or she invited the court to make.’ ” Anderson v. State, 93 So. 3d 1201, 1203 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1891c] (quoting Muina v. Canning, 717 So. 2d 550, 553-54 (Fla. 1st DCA 1998) [23 Fla. L. Weekly D1356b]).

This Court finds that Appellant did not invite the error and that the issue is preserved for appeal. Appellant made his position clear a number of times fully apprising the trial court of the putative error, and one limited statement cannot be shown to rise to the level of invited error.¹ Therefore, this Court finds that the issue was adequately preserved for appeal.

2. Analysis of Claim

The Florida Supreme Court has articulated the legal standard for determining the appropriateness and the amount of a potential multiplier. Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 834 (Fla. 1990). In determining if a multiplier is appropriate in cases like the instant case, a court should consider three factors:

(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 anyway; and (3) whether any of the factors set forth in [Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)] are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.

Id. Quanstrom then dictates a schedule of multiplier amounts based on the likelihood of success at the outset of the case. Id.

Analysis of whether a multiplier is appropriate rests heavily on the first Quanstrom factor. See Bell v. U.S.B. Acquisition Co., 734 So. 2d 403, 409 (Fla. 1999) [24 Fla. L. Weekly S220a] (“[T]he critical factor for the court to consider in deciding whether to apply a multiplier was the party’s difficulty in finding counsel without risk-enhancement.”); Eckhardt, 969 So. 2d at 1223; USAA Cas. Ins. Co. v. Prime Care Chiropractic Centers, P.A., 93 So. 3d 345, 347 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1107a] (citations omitted). The second factor is also given great weight. See Quanstrom, 555 So. 2d at 834 (finding that multiplier is useful in determining a reasonable fee “when the risk of nonpayment is established” (emphasis added)); Pompano Ledger, Inc. v. Greater Pompano Beach Chamber of Commerce, Inc., 802 So. 2d 438, 439 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2909c].

This Court finds that the plain language of Quanstrom demonstrates that likelihood of success at the outset is a factor to determine the amount of the multiplier, and not for the appropriateness of imposing one. See Alvarado v. Cassarino, 706 So. 2d 380, 381 (Fla. 2d DCA 1998) [23 Fla. L. Weekly D530a] (“Once the court determines that a multiplier is necessary, the trial court must then examine the likelihood of success at the outset and select a multiplier from the range of 1 to 2.5 in accordance with the guidelines set out in Quanstrom.” (emphasis added)). While Appellee cited a few cases in which a multiplier was upheld after a court used this factor in its analysis of the multiplier’s appropriateness, this Court finds that this is not the common practice. This Court further notes that in the cases cited by Appellee, the issue of whether the likelihood of success could be considered in determining the appropriateness of a multiplier was not specifically addressed, rather the opinions just cursorily mention that the factor was considered by the lower court. Therefore, we find that the trial court did impose the incorrect legal standard. However, because this Court finds that there was still competent, substantial evidence to support the application of a multiplier under the correct legal standard, as discussed below, this Court finds the error to be harmless.

B. Whether There was Competent, Substantial Evidence to Support the Application of a Multiplier

Appellant maintains that, even under the correct legal standard, there was insufficient evidence to support the application of a multiplier. Defendant avers that multipliers should be sparingly used and that Appellee did not meet its burden of establishing that a multiplier was appropriate. After reviewing the rules as articulated above, the record on appeal, the parties’ arguments, and case law, this Court finds that there is competent, substantial evidence to support the application of a multiplier.

1. Ability to Obtain Competent Counsel

Appellant asserts that there was no evidence that supports the conclusion that Appellee had any difficulty obtaining counsel. Specifically, Appellant alleges that it would “defy logic” to find so because Appellee and counsel had a prior relationship. Appellant further asserts that this factor cannot be proven by expert testimony, but rather, that it is necessary to have the plaintiff personally testify as to their difficulty obtaining counsel.

At the hearing on the attorneys’ fees, expert fee witness, James C Rinaman, III (“Rinaman”), testified for Appellant, and expert fee witness, Joseph Camerlengo (“Camerlengo”) testified for Appellee. Camerlengo testified that a multiplier would likely be necessary to obtain competent counsel. Camerlengo stated that he discussed PIP cases with another local attorney who told Camerlengo that he does not take PIP cases without expecting a multiplier. Camerlengo further testified that Scott Craig, trial counsel for Appellant, did have ten to fifteen PIP cases with Appellant already, but said that they were “all [taken] with a multiplier expectation.” Despite Appellant’s assertion that expert testimony alone is not sufficient to find this factor, that is not the state of the law in the First District at this time. Massie v. Progressive Exp. Ins. Co., 25 So. 3d 584, 585 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D2364b] (finding that “expert testimony that a party would have difficulty securing counsel without the opportunity for a multiplier supports a multiplier’s imposition.”). Therefore, this Court finds competent, substantial evidence supporting this most “critical” factor and supporting the imposition of a multiplier.

2. Ability to Mitigate the Risk of Nonpayment

Appellant avers that counsel was able to mitigate the risk of nonpayment. As support, Appellant states that the section 627.428, Florida Statutes, guarantees counsel’s entitlement to attorneys’ fees in any case in which counsel prevailed, and that Appellee had an ongoing relationship with counsel.

This Court notes that section 627.428 only guarantees attorneys’ fees if the plaintiff prevails. Therefore, as the trial court pointed out, there was no guarantee of payment without obtaining a favorable verdict. Moreover, this Court is not persuaded by Appellee’s ongoing relationship with counsel. As Camerlengo testified, it is not feasible that the party could pay counsel by the hour in these type of cases in which the attorneys’ fees may become quite large and the plaintiff may only be seeking a relatively small amount of damages. Therefore, this Court finds competent, substantial evidence supporting this important factor as well.

3. Rowe Factors

The most important of the Rowe factors, according to Quanstrom, are the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client. Quanstrom, 555 So. 2d at 834. While in its Final Judgment the trial court only relied on the results obtained factor in determining that a multiplier was necessary, this Court will address each of the Rowe factors mentioned in Quanstrom.

First, a verdict was rendered in favor of Appellee, and Appellee was awarded the entire amount of damages incurred.² The trial court was, therefore, correct in concluding that counsel, obtained the “best possible result” for Appellee. The evidence of this factor supports the imposition of a multiplier.

Second, the amount involved was 6,805 dollars, which Appellant asserts is minimal in comparison to the 132,000 dollars awarded for attorneys’ fees. While this Court acknowledges the disparity between the damages award and attorneys’ fees award, this Court notes that the maximum recovery on such cases is 10,000 dollars. § 627.736(1), Fla. Stat. (2010). Therefore, this Court finds that this factor does not support or preclude the application of a multiplier.

Lastly, Appellee and trial counsel entered into a contingency fee agreement. As articulated in Rowe, “[t]he contingency risk factor is significant in personal injury cases. Plaintiffs benefit from the contingent fee system because it provides them with increased access to the court system and the services of attorneys.” 472 So. 2d at 1151. The evidence of this factor, thus, supports the imposition of a multiplier.

IV. Conclusion

Although the trial court applied the wrong legal standard in determining the appropriateness of the multiplier, this Court finds this to be harmless error because the multiplier is supported by competent, substantial evidence under the correct legal standard. The trial court, therefore, did not err in applying a multiplier in this case.

Accordingly, it is:

ORDERED AND ADJUDGED that the trial court’s Order and Final Judgment Awarding Attorneys’ Fees and Costs is hereby AFFIRMED.

__________________

¹Moreover, this Court notes that when Appellant limitedly acquiesced, it seems that was only to say that if there was evidence that the likelihood of success made it difficult to find competent counsel, the trial court could likely look to that evidence under the appropriate factors. Appellant never asserted that the trial court could review likelihood of success as a separate factor in determining the appropriateness of a multiplier.

²The parties stipulated to 6,805 dollars as the damage amount.

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