3 Fla. L. Weekly Supp. 613b
Attorney’s fees — Insurance — Cancellation of policy in violation of statute — Contingency risk multiplier
PARADIGM INSURANCE COMPANY, Appellant/Petitioner, vs. REINALDO AGUILA, Appellee/Respondent. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 95-174AP. Lower Court Case No. 94-9417 CC 05. Opinion filed January 26, 1996. An Appeal from County Court for Dade County, Florida, Nancy J. Pollock, Judge. Evan M. Feldman, for appellant. Thomas Caldwell, James C. Blecke, for appellee.
(Before MARTIN KAHN, EUGENE J. FIERRO and MICHAEL A. GENDEN, JJ.)
(MICHAEL A. GENDEN, J.) This is an appeal from a final judgment awarding attorneys fees to the appellee. Without a record on appeal we can not state that trial court abused its discretion in finding that multiplier of 2.25 was inappropriate in this case.
AFFIRMED. (MARTIN KAHN, J. concurs.)
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(Eugene J. Fierro, J. dissents as follows.) The appellee, Reinaldo Aguila, filed suit against appellant, Paradigm Insurance Company (Paradigm) and Just Rite Insurance Agency based on alleged statutory violations. In this case, several pleadings were filed including an amended complaint and several motions related to discovery before the appellee settled with the appellant, Paradigm, for $5,750.00, including $250.00 costs. Paradigm also stipulated to appellee’s entitlement to reasonable attorney fees under Fla. Stat. 627.428.
After a hearing on attorneys fees, the Court below entered “Final Judgment for Attorney Fees” in the amount of $6,750.00 for the appellee. The Court found inter alia that the appellee obtained representation under a contingency fee contract; $150.00 was a reasonable hourly rate for the services performed and that 20 hours were reasonably charged. Finally, the Court made the determination that this case warranted a 2.25 contingency fee multiplier.
The appellant, Paradigm, appeals the Final Judgment for Attorney Fees. The appellant essentially raises three points on appeal. Only two merit discussion. We have jurisdiction.
The appellant’s first point on appeal is that the trial court erred in allowing certain hours not billable to the client. The court below based its finding on the documentary evidence and on its findings adduced at the attorney fees hearing. The appellant has not provided a transcript of the attorney fee hearing and apparently none exists. If the record on appeal is insufficient for review, the appellate court must affirm. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1980).
Here, the Court below accepted some hours and rejected others. The record is insufficient to determine exactly what conclusions the trial court reached at the hearing. Therefore this court must affirm. Accordingly, that portion of the judgment below dealing with the reasonableness of the fees and the amount of hours allowed should be affirmed.
In its second point, the appellant asserts that the trial court improperly applied the contingency risk factor multiplier. Unlike the trial court’s determinations at the hearing, errors evident on the fact of the judgment are reviewable. Giltex Corp. v. Diehl, 583 So. 2d 734 (Fla. 1st DCA 1991).
First, the trial court correctly concluded this is the type of case to which a contingency risk multiplier may be applied. Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990). The trial court also properly considered most of the findings it should in order to comply with Quanstrom, supra. However, application of a multiplier in a “run of the mill” case is an abuse of discretion. U.S. Security Ins. v. Lapour, 617 So. 2d 347 (Fla. 3d DCA 1993).
In this case, the appellee filed a two count complaint. Only Count II was specifically directed at the appellant. The count alleged a violation of Fla. Stat. 627.728. The Appellant answered Count I of the amended complaint and moved to dismiss Count II based upon Fla. R. Civ. P. 1.130 because the appellee allegedly failed to attach a copy of the policy. By agreed order the motion was denied because the appellee represented that he did not have a copy of the policy. The appellant apparently never answered the appellee’s allegations in Count II and the record reveals only basic discovery practice. The case never went to trial. The Final Judgment for Attorney Fees states that the appellant settled the case “at or near the full amount sought in the action.” Therefore, factually, this case does not present comply issues or obstreperousness of the parties warranting application of a contingency risk multiplier.
Turning to the gravamen of the appellee’s complaint, if the notice of cancellation was mailed prior to sixty days from the effective date of the policy, the appellant could have canceled the policy regardless of the reason. Bankers Ins. Co. v. Ramirez, 597 So. 2d 366 (Fla. 3d DCA 1992). If the notice of cancellation was mailed after the sixty day period, then it could only be cancelled for non-payment, misrepresentation or fraud, or revocation of an operator’s license during a specific time frame. 627.728(2)(a), (b), (c), Fla. Stat. (1993).
It should have been clear to appellee, prior to filing the suit, that a notice of cancellation mailed 62 days after the effective date of the policy and not giving any of the reasons listed under Fla. Stat. 627.728(a), (b), or (c), was ineffective. As a matter of law the appellee’s probability of success does not support the application of a contingency risk multiplier and the trial court’s application of a 2.25 multiplier is an abuse of discretion. U.S. Security Ins. v. Lapour, 617 So. 2d 347 (Fla. 3d DCA 1993).
The trial court’s application of a contingency risk multiplier was an abuse of discretion and modifies the judgment of the court below as to the multiplier. See Lapour, supra. Since the record on appeal is insufficient, the Court affirms the trial court insofar as the reasonable per hour fees of $150.00 and 20 hours reasonable time for a total Final Judgment for Attorney Fees of $3000.00.
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