5 Fla. L. Weekly Supp. 523a
Insurance — Personal injury protection — Failure to timely notify insurer of accident — Presumption of prejudice — No error in allowing jury to decide whether insurer was prejudiced by insured’s late notice of accident — New trial — Where reasonable minds could have differed as to whether insured’s delay in notifying insurer of accident visited prejudice upon insurer, new trial not warranted — Jury instructions — Contention that combination of standard and nonstandard jury instructions on damages was improper must fail — Where nonstandard jury instructions merely explained how PIP benefits were to be calculated, and complaint alleged that damages were at least $2500 but not more than $5000, award of $3000 does not demonstrate either prejudicial error, or that such instructions were confusing, inconsistent, or repetitive — Attorney’s fees — In PIP case that did not break new ground, $45,348.00 in attorney’s fees does not bear reasonable relationship to recovery of $3000 — New trial on award of attorney’s fees required
SECURITY NATIONAL INSURANCE COMPANY, Appellant, v. MARIA SEIN n/k/a MARIA SEIN-DORSETT, Appellee. 17th Judicial Circuit in and for Broward County. Case Nos. 97-323 (09), 97-2593(13) (Consolidated). L.T. Case No. 94-13606(55). March 18, 1998. Robert Lance Andrews, Judge.
OPINION
THIS CAUSE came before the Court upon the appeal of a county court order denying a Motion for New Trial. The Court, having considered same, having heard argument of counsel, having reviewed the record and all pertinent authority, and being otherwise duly advised in the premises, finds and decides as follows:
The Appellee, MARIA SEIN-DORSETT (SEIN-DORSETT) was involved in an automobile accident which took place on December 18, 1993. The next day, the Appellee and the person who had rear-ended her car (David Jaffe) went to the police station to fill out a police report. At that time, the Appellee did not inform her insurance carrier, the Appellant SECURITY NATIONAL INSURANCE COMPANY (SECURITY), of the accident. However, Mr. Jaffe had notified his automobile insurance carrier, Allstate, which: (1) called the Appellee; (2) paid for the repair of her car; and (3) paid for the Appellee to rent a car.
Later, SEIN-DORSETT complained of head, neck, and hip pain, although she did not seek medical attention for these injuries under her PIP protection until May 10, 1994. At that time, the Appellee had x-rays of her back taken, and was then referred to a chiropractor. This was the first time that the Appellee filled out a PIP application. Soon afterwards, SEIN-DORSETT notified SECURITY of the accident.1 In response, SECURITY arranged for the Appellee to receive an IME. Ultimately, SECURITY denied the claim, after which the Appellee filed the instant suit.
At trial, SECURITY requested that the Court inform the jury that a presumption of prejudice arises when the insured fails to apprise the insurer of an accident in a timely fashion. The court below declined to do so. The Appellant then moved for a directed verdict after Appellee’s case-in-chief, stating that SEIN-DORSETT failed to show that SECURITY had not been prejudiced by Appellee’s late notice. The lower court denied that motion as well.
However, Appellee moved for a directed verdict later in the trial on the issue of prejudice. The court below granted that motion. Thus, the presumption of prejudice vanished, and that issue became a matter for the jury to decide.2
Ultimately, the jury found that, although SEIN-DORSETT had failed to notify SECURITY as soon as was practicable, no prejudice had attached to the Appellant. Therefore, the jury awarded an insurance benefit of $3,000.00 to the Appellee.3
Consequently, the Appellant filed a Motion for Judgment Notwithstanding the Verdict, which was denied by the lower court. Then, Appellee’s successful Motion for Attorney Fees, Costs and Interest resulted in an award of $45,348.00.4 Now, the Appellant states that the trial court erred by: (1) failing to enter a directed verdict on the issue of notice and prejudice; (2) failing to grant a new trial where the jury verdict was contrary to the manifest weight of the evidence; (3) instructing the jury with a non-standard instruction on damages which was confusing, inconsistent, repetitive, and prejudicial; (4) failing to instruct the jury that SECURITY was prejudiced by SEIN-DORSETT’s late notice; and (5) awarding $45,348.00 in attorney fees on a $3,000.00 recovery. After considering all pertinent facts and law, this Court finds that the first, second, third, and fourth assignments of error are without merit. However, the Court agrees that, under these facts, the attorney’s fees were excessive.
First, “in considering a motion for a directed verdict, the trial court is required to view the evidence in the light most favorable to the nonmoving party and draw all reasonable conclusions and inferences favorable to the nonmoving party.” Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So. 2d 168, 171 (Fla. 4th DCA 1994) (citation omitted). Here, after a careful review of the record, this Court finds that the trial court committed no error by allowing the issue of prejudice to go to the jury. Hence, that issue need not be revisited.
Second, a trial court can and should only “grant a new trial if the manifest weight of the evidence is contrary to the verdict.” Smith v. Brown, 525 So. 2d 868, 870 (Fla. 1988) (citation omitted). If the court below enters an order denying a motion for new trial, the appellate court must “apply the reasonableness test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Id. (Citation omitted). In the case sub judice, the Court finds that reasonable minds could have differed as to whether Appellee’s delay in notifying the Appellant of the accident visited prejudice upon SECURITY; therefore, a new trial on this matter is not warranted.
Third, the Appellant’s contention that the combination of standard and nonstandard jury instructions were improper must fail. “Decisions regarding jury instructions are within the sound discretion of the trial court and should not be disturbed on appeal absent prejudicial error. Prejudicial error . . . occurs only where `the error complained of has resulted in a miscarriage of justice.’ ” Goldschmidt v. Holman, 571 So. 2d 422, 425 (Fla. 1990) (citations omitted). In the case at bar, the Complaint alleged that damages were at least $2,500.00 but not more than $5,000.00. An award of $3,000.00 does not demonstrate either prejudicial error, or that such instructions were confusing, inconsistent, or repetitive. Further, because the nonstandard jury instructions merely explained how PIP benefits were to be calculated, this assignment of error is without merit.
Fourth, SECURITY’s claim that the trial court should have instructed the jury that it was prejudiced by SEIN-DORSETT’s late notice simply rehashes the first assignment of error. Thus, no further discussion of this matter is necessary.
Although this Court has rejected the first four allegations of error by the Appellant, it finds merit in the contention that the attorney’s fees were patently excessive. The controlling authority for the award of attorney’s fees is Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). In Rowe, the Florida Supreme Court provided guidance for lower courts to compute attorney’s fees by employment of the following formula:
[I]n computing an attorney fee, the trial judge should (1) determine the number of hours reasonably expended on the litigation; (2) determine the reasonable hourly rate for this type of litigation; (3) multiply the result of (1) and (2); and when appropriate, (4) adjust the fee on the basis of the contingent nature of the litigation . . . .
Id. at 1151-52.
Moreover, when a fee agreement states that attorney fees would be either a specific percentage of the recovery or the amount awarded by the court under the prevailing party statute — whichever yields the higher fee, a court may apply a contingency multiplier and award a reasonable fee which exceeds the amount of the fee recoverable under the percentage alternative of the fee agreement. Kaufman v. MacDonald, 557 So. 2d 572, 573 (Fla. 1990).
The operative word here is reasonable. “The fee awarded must bear a reasonable relationship to the results obtained.” Lumbermen’s Mutual Casualty Co. v. Quintana, 366 So. 2d 529, 530 (Fla. 3d DCA 1979). Here, although the fee agreement is of the kind contemplated by Kaufman, the contingency multiplier was applied to an hourly rate that far exceeded an appropriate rate for the services rendered.5 In a PIP case that did not break any new ground, $45,348.00 in attorney’s fees does not bear a reasonable relationship to a recovery of $3,000.00. A recovery between $2,500.00 and $5,000.00 was one that was both requested and expected by the Appellee, as evidenced by the allegations in her Complaint. Consequently, a new trial is necessary on the award of attorney’s fees.
Accordingly, it is hereby
ORDERED AND ADJUDGED that for the reasons set forth above, the decision of the trial court is AFFIRMED except for the award of attorney’s fees. It is further ORDERED AND ADJUDGED that the award of attorney’s fees is REVERSED and remanded for proceedings consistent with this Opinion.
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1Appellee visited SECURITY’s office on May 18, 1994.
2The jury was given special instructions on damages as well as standard jury instructions in this matter.
3This award fell within the amount alleged by the Appellee in the Complaint. To wit: at least $2,500, but not to exceed $5,000.00.
4$45,348.00 represents the attorney’s fees alone. The trial court also awarded costs of $921.67.
5Three hundred dollars was the hourly rate awarded by the trial court.
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