9 Fla. L. Weekly Supp. 503a
Attorney’s fees — Insurance — Personal injury protection — Appellate court will not substitute its judgment for that of trial court on factual issue of when insurer agreed to pay all that was due and case ended — No abuse of discretion in concluding, based on expert affidavit, that bills of insured’s two attorneys were not duplicative — Contingency risk multiplier — Although only basis for awarding multiplier articulated in order was contingency fee agreement, where there is evidence in record that relevant market requires multiplier to obtain competent counsel, trial court did not abuse its discretion in awarding 1.25 multiplier
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, vs. PHILLIP GOLDSTEIN, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-00-102. L.C. No. CCO-00-5745. June 7, 2002. Appeal from the County Court for Orange County, Jerry L. Brewer, Judge. Counsel: Karen A. Barnett, for Appellant. V. Rand Saltsgaver, for Appellee.
(Before RODRIGUEZ, COLEMAN, and STRICKLAND, JJ.)
FINAL ORDER AND OPINIONAFFIRMING THE TRIAL COURT
(PER CURIAM.) State Farm appeals the trial court’s orders of December 12, 2000, and December 22, 2000, which awarded attorney’s fees to Goldstein’s two attorneys, Kevin B. Weiss, and V. Rand Saltsgaver. The Court dispenses with oral argument pursuant to Florida Rule of Appellate Procedure 9.320 and affirms the trial court’s orders.
Goldstein filed suit in county court on May 26, 2000, seeking PIP benefits, interest, court costs and attorneys’ fees pursuant to § 627.428, Florida Statutes. After State Farm failed to respond to the complaint, a default was entered by the clerk of the court on July 21, 2000. On August 15, 2000, the trial court entered a final default judgment against State Farm. Subsequently, Attorney Weiss filed a motion for attorney’s fees and costs, and Attorney Saltsgaver submitted “time and costs records.”
The trial court held hearings on the subject of attorney’s fees on October 19, 2000, and December 6, 2000.
In the October 19, 2000, hearing, Saltsgaver stated that “during the last 21 years, I’ve done hundreds and hundreds of these PIP files” in trial and appellate courts. He stated that he worked eight hours on this case, and asked for $275 per hour. Saltsgaver stated that he agreed to represent Goldstein on a “pure contingency fee agreement or basis.”
Saltsgaver also explained why he thought that a contingency fee multiplier should be awarded. He discussed the factors enumerated in Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990), and why he thought they applied here. He asserted that the market requires the multiplier for a plaintiff to obtain competent counsel in a case like this, “especially when it comes to certain carriers including this carrier. I’m not going to become involved in any case wherein State Farm is a defendant or Allstate’s a defendant unless the Court is going to award me a fee multiplier.”
Finally, Saltsgaver asserted that State Farm “did not pay all of the benefits in dispute, plus interest, until late August” of 2000, when, he alleged, State Farm confessed judgment, “so we’re entitled to attorney’s fees up through and including that point.”
Attorney Weiss also testified, discussing the contingency fee arrangement and stating that it is “really a factual issue as to when the case was actually over.” He stated that in August, 2000, one provider’s bills remained unpaid. He discussed letters that he exchanged with State Farm in August, and stated that he considered the case closed as of August 31, 2000.
In the December 6, 2000, hearing, the parties again offered testimony to support their positions as to when the case ended. Attorney Weiss testified that his efforts continued until August 29, 2000, when he “obtain[ed] the final benefit for the client,” and therefore he stopped billing on that date. State Farm countered with witnesses who claimed that the insurer had offered to pay all of the medical bills on June 14, 2000, making Goldstein’s attorneys’ services unnecessary after that date.
The record contains time sheets from Weiss and Saltsgaver. The trial court also considered an affidavit from Michael B. Brehne, Esq., who stated that he found the number of hours claimed by both attorneys to be reasonable, that their efforts were not duplicative, and that “it appears that the Plaintiff’s attorneys coordinated their efforts to avoid duplication of effort.” Brehne also stated that after reviewing the case file, he believed that the underlying dispute over payments was not completely resolved until the end of August, 2000.
On December 12, 2000, the trial court issued its Amended Final Judgment Awarding Attorney’s Fees and Costs to Kevin B. Weiss. The court found that Weiss had “reasonably expended” 28.4 hours on this case for which he should be compensated at a rate of $200 per hour. The court concluded that “taking into consideration the evidence, as well as the above law, the Court finds that the Plaintiff’s chances of success at the outset or onset of this case were more likely than not (x 1.0-1.5).” The court found that “a contingency risk multiplier of 1.25 is appropriate and applicable.”
The order stated that the multiplier award was based upon the finding that “plaintiff’s counsel proceeded on pure contingency” and that the court had “considered all of the factors or criteria set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 as well as [Quanstrom].” The order awarded Weiss fees and costs in the amount of $7,270 plus prejudgment interest awarded from August 24, 2000.
On December 22, 2000, the trial court issued its Amended Final Judgment Awarding Attorney’s Fees and Costs to V. Rand Saltsgaver. The order was identical to the one issued for Weiss, except the court found that Saltsgaver should be compensated for 10 hours at a rate of $275 per hour, making the total fees and costs awarded $3,437 plus prejudgment interest from August 24, 2000.
This appeal followed.
The statute that authorizes an award of attorney’s fees to Goldstein is § 627.428(1), Florida Statutes, which provides:
Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
State Farm seems to be challenging the need for the services that the attorneys claim they provided, alleging that on June 14, 2000, nine days after the complaint was served, it offered to pay all bills due. State Farm claims that since it did not unreasonably withhold payment, the court erred in awarding attorney fees for services rendered after June 14, 2000. State Farm also asserts that there is inadequate expert testimony on the record to support the attorneys’ claims, that some of the bills are duplicative, and that there is insufficient evidence to support the fee multiplier award.
Goldstein responds that after June 14, 2000, factual disputes remained about tender and entitlement, and that the case was not resolved until the end of August, 2000. Goldstein argues that the record does contain sufficient evidence to support the individual claims and the multiplier award.
The standard of review of decisions to award attorney’s fees and fee multipliers is abuse of discretion. Baker v. Falcon Power, Inc., 788 So. 2d 1104 (Fla. 5th DCA 2001); Elliot v. Pallotti, 654 So. 2d 1300 (Fla. 5th DCA 1995). State Farm has the burden of proving that the trial court abused its discretion. Id. at 1302.
Despite State Farm’s allegation, the issue here is not whether Florida law requires an insurer to pay attorney fees after the insurer agrees to pay all of the PIP benefits that are due. The pertinent question instead is, when did State Farm agree to pay all that was due? Or, when did the case end?
This case thus is, in essence, a dispute over facts. The trial judge heard the testimony and decided that the facts supported Goldstein’s attorneys’ position that the case ended in late August, 2000. This Court will not substitute its judgment for the factual determinations of the trial court, which are afforded the same deference given to jury verdicts. Baker, 788 So. 2d at 1105-06; Ferry v. Abrams, 679 So. 2d 80 (Fla. 5th DCA 1996).
Further, contrary to State Farm’s assertion, there was adequate evidence before the trial court, including an expert’s affidavit, supporting the specific fee claims. Therefore, it was not an abuse of discretion for the trial judge to accept Weiss’ and Saltsgaver’s affidavits and time records, nor was it an abuse of discretion to conclude, based on their expert’s affidavit, that the bills were not duplicative. Likewise, it was within the trial court’s discretion to award the attorneys $200 and $275 per hour. See Hartford Acc. & Indem. Co. v. Bosworth, 382 So. 2d 1345 (Fla. 5th DCA 1980).1
State Farm also argues that it was improper for the trial court to award a fee multiplier in this case. In Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150-51 (Fla. 1985), the Florida Supreme Court held that statutes authorizing the payment of attorney’s fees to prevailing parties are constitutional, and that the federal lodestar method should be used to calculate fees (the lodestar amount is the number of hours reasonably spent by the attorney multiplied by a reasonable hourly rate). The Supreme Court stated that in order to determine reasonable attorney fees, courts should use the criteria set out in Disciplinary Rule 2-106(b) of the Florida Bar Code of Professional Responsibility, which is now Rule of Professional Conduct 4-1.5(b). Some of those criteria were time and labor required, novelty and difficulty of the issue, customary charges in a specific locality, and results obtained. Id. at 1150. In Quanstrom, 555 So. 2d 828, the Florida Supreme Court modified the principles of Rowe. The court discussed the award of fee multipliers in tort and contract cases, and stated:
Here, we reaffirm the principles set forth in Rowe, including the code provisions, and find that the trial court should consider the following factors in determining whether a multiplier is necessary: (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 any way; and (3) whether any of the factors set forth in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client. Evidence of these factors must be presented to justify the utilization of a multiplier. We find that the multiplier is still a useful tool which can assist trial courts in determining a reasonable fee in this category of cases when a risk of nonpayment is established. However, we find that the multiplier in Rowe should be modified as follows: If the trial court determines that success was more likely than not at the outset, it may apply a multiplier of 1 to 1.5; if the trial court determines that the likelihood of success was approximately even at the outset, the trial judge may apply a multiplier of 1.5 to 2.0; and if the trial court determines that success was unlikely at the outset of the case, it may apply a multiplier of 2.0 to 2.5. Accordingly, our Rowe decision is modified to allow a multiplier from 1 to 2.5.
Id. at 834.
Further, the Florida Supreme Court has emphasized that there must be evidence in the record of “risk of nonpayment” to counsel and corresponding difficulty for the client to obtain competent counsel to justify the award of a multiplier. Bell v. U.S.B. Acquisition Co., 734 So. 2d 403, 409-10 (Fla. 1999); Quanstrom, 555 So. 2d at 834; see also Aries Ins. Co. v. Aleman, 27 Fla. L. Weekly D920b (Fla. 3d DCA Apr. 24, 2002) (“main focus of the court’s inquiry in determining whether to apply a multiplier should be on the first factor listed in Quanstrom, i.e., whether the relevant market requires a contingency fee multiplier to obtain competent counsel”).
Here, although the only basis for awarding the 1.25 multiplier specifically articulated in the trial court’s orders was that there was a contingency fee agreement, the hearing transcripts do show that the trial judge heard evidence pertaining to the other Quanstrom factors, including testimony that the relevant market requires such a multiplier in order for Goldstein and similar plaintiffs to obtain competent counsel. Since there is such evidence in the record, there is no reason for the Court to rule that the trial judge abused his discretion in believing that evidence and in awarding the 1.25 contingency fee multiplier.
In sum, State Farm has failed to meet its burden of proving abuse of discretion.
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that the trial court’s orders are AFFIRMED. (RODRIGUEZ, COLEMAN, and STRICKLAND, JJ., concur.)
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1State Farm also argues that Goldstein lacked standing to bring suit because he assigned his PIP benefits to the only medical provider whose bill remained at issue after June 14, 2000 (the date on which State Farm alleges it offered to pay all bills), citing Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So. 2d 469 (Fla. 5th DCA 2001). This Court will not consider this argument, not only because it would require the Court to address factual allegations that are not properly before it, but also because State Farm failed to preserve the standing defense for appellate review. Superior Ins. Co. v. Libert, 776 So. 2d 360 (Fla. 5th DCA 2001); see generally Krivanek v. Take Back Tampa Political Committee, 625 So. 2d 840 (Fla. 1993) (lack of standing defense not raised to trial court is waived on appeal).
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ORDER GRANTING APPELLATE ATTORNEY’S FEES
THIS MATTER came before the Court for consideration of Appellee’s Motion for Appellate Attorney’s Fees, filed January 24, 2001, pursuant to Florida Rule of Appellate Procedure 9.400 and § 627.428, Florida Statutes. By separate opinion rendered contemporaneously with this Order, this Court affirmed the orders on appeal. Since Appellee prevailed on appeal, he is entitled to recover his attorney’s fees incurred in connection with this appeal. Fla. R. App. P. 9.400(b).1 Costs of this appeal also should be taxed in favor of Appellee by the lower court on motion served within 30 days after issuance of the mandate. Fla. R. App. P. 9.400(a).
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that Appellee’s January 24, 2001, Motion for Appellate Attorney’s fees is GRANTED. The matter is remanded to the trial court for an award of appellate attorney’s fees.
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1On February 27, 2002, Appellee filed a motion for additional appellate attorney’s fees as sanctions under Florida Rule of Appellate Procedure 9.410 and § 57.105, Florida Statutes. That motion is denied.
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