6 Fla. L. Weekly Supp. 609a
Insurance — Personal injury protection — Discontinuation of benefits after independent medical examination — Where insured prevailed in action against insurer, and insured’s expert witness testified that he expected to be paid for his testimony, trial court properly awarded expert witness fee to insured — Attorney’s fees — Insured sufficiently pled entitlement to attorney’s fees — Evidence insufficient to support fee award where insured’s attorney failed to submit sworn affidavit or testify as to how much time he spent on the case — Remand for evidentiary hearing on attorney’s fees issue
U.S. SECURITY INSURANCE COMPANY, Appellant, vs. ANGEL PAREJA, Appellee. 11th Judicial Circuit in and for Miami-Dade County, Appellate Division. Case No. 98-070AP. Lower Tribunal Case No. 95-7192 CC 05. Opinion filed July 2, 1999. An appeal from the County Court of Miami-Dade County, Florida, Marvin H. Gillman, Judge. Counsel: David Pakula and Michael Nuzzo, for Appellant. Charles L. Vaccaro, for Appellee.
(Before CAROL R. GERSTEN, SANDY KARLAN and HENRY H. HARNAGE, JJ.)
(PER CURIAM.) The Appellee, Angel Pareja (hereinafter “Pareja”), was involved in an automobile accident on July 3, 1994. He was treated for injuries sustained in the accident and submitted a claim for PIP benefits to Appellant, U.S. Security Insurance Company (hereinafter “Insurer”). The insurer required an independent medical examination, and thereafter did not pay PIP benefits to Pareja. On May 3, 1995, Pareja filed suit against the insurer seeking recovery of his unpaid PIP benefits and attorney’s fees. Subsequent to the filing of a lawsuit, the insurer agreed to pay PIP benefits.
After the parties settled the PIP claim, Pareja filed a motion for both witness fees and attorney’s fees. The motion was granted and Pareja was awarded fees. The Insurer appeals the award of expert and attorneys’ fees.
We approve the lower court’s award of an expert witness fee. Pareja’s expert witness testified that he expected to be paid for his testimony. Therefore, in accord with Stokus v. Phillips, 651 So. 2d 1244, 1246 (Fla. 2d DCA 1995) the court’s award of the expert fee is AFFIRMED.
We find that the allegations for attorney’s fees in the complaint sub judice are similar to those in U.S. Security Insurance Company v. Londono, 5 F.L.W. Supp. 514 (11th Jud. Cir., April 10, 1998). In U.S. Security, the Plaintiff cited the statute under which she was traveling in her complaint, followed by her request for attorney’s fees immediately thereafter, as in the instant case. In Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991), the court noted that a claim for attorney’s fees must be pled. The complaint in U.S. Security, as in this case, referenced attorney’s fees at least three times. Therefore, the instant complaint meets the Stockman pleading requirement. The fundamental concern is one of notice. Stockman, at 837. We find as did the U.S. Security court that such pleading gives notice and direction to the defendant that attorneys fees are being sought. Both the U.S. Security complaint and the instant one put the defendants on notice that fees were being sought. Therefore, we affirm Pareja’s entitlement to attorney’s fees.
However, even though the Appellee established entitlement, he failed to establish a reasonable amount of fees to be awarded. The seminal case of Florida Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985) states that a factor the court should consider in determining a reasonable attorney’s fee is the time and labor required to represent the party seeking fees. In the instant case, the attorney representing the plaintiff did not testify as to time spent nor were time records introduced. See Attorney’s Fee Hearing Transcript dated January 14, 1998. Such testimony or evidence of time expended is required in an attorney’s fee hearing unless waived by the opposing party. Aspen Investment Corp. v. Holzworth, 587 So. 2d 1374 (Fla. 4th 1991). Where the plaintiff’s attorney failed to submit a sworn affidavit or testify as to how much time he spent on the case, the court held there was insufficient competent evidence to award attorney’s fees. Wiley v. Wiley, 485 So. 2d 2, 3 (Fla. 5th DCA 1986). In Wiley, the appellate court remanded the case for a hearing so that competent evidence detailing the attorney’s services performed in the matter could be ascertained. We agree with Wiley, and accordingly we remand this matter for an evidentiary hearing to determine a reasonable amount for the attorney’s fee award in accord with Rowe factors.
Pareja has filed a motion for appellate attorney’s fees. As the substantially prevailing party, the motion is granted. Overseas Equipment Co., Inc. v. Aceros Arqitectonicos, 376 So. 2d 475 (Fla. 1979) cert. denied 383 So. 2d 1189 and Fla. R. App. P. 9.400(b). This case is remanded to the lower court for assessment of a reasonable appellate attorney’s fee.
AFFIRMED IN PART AND REVERSED IN PART AND REMANDED for proceedings consistent with this opinion.
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