Volume 11

11 Fla. L. Weekly Supp. 341a

Insurance — Personal injury protection — Attorney’s fees — Contingency risk multiplier

11 Fla. L. Weekly Supp. 340a

Insurance — Personal injury protection — Attorney’s fees — Contingency risk multiplier

11 Fla. L. Weekly Supp. 404a

Attorney’s fees — Insurance — Evidence — Judicial notice — Error to determine confession of judgment and entitlement to attorney’s fees on ground that insurer had settled case with insured without reviewing settlement agreement in camera and to base determination on order rendered in another case without bringing record of other case into current case — Court taking judicial notice of evidence in related case must bring evidence into record of case under consideration

11 Fla. L. Weekly Supp. 229a

Insurance — Automobile — Contracts — Class action by plaintiff involved in accident with defendant’s insured, alleging that defendant insurer breached insurance contract by using non-OEM parts in estimate to repair plaintiff’s vehicle — Florida’s nonjoinder statute applies to contract action, and plaintiff must satisfy condition precedent of obtaining settlement or verdict against insured prior to attaining third-party beneficiary status — Plaintiff has not satisfied condition precedent where, although insurer did make payments to plaintiff for damage to his vehicle, payments were not part of settlement or verdict against insured — Even if nonjoinder statute did not apply, plaintiff has suffered no damages and has no case against insurer where, although estimate called for non-OEM bumper and bumper cover, OEM bumper and cover were actually installed and insurer reimbursed plaintiff for difference in value of parts, and replacement of taillight with non-OEM part was unilateral decision of repair shop made at shop’s own expense — It was permissible for insurer to discover and correct billing errors prior to class certification — Attorney’s fees — There is no requirement that defendant making payments in attempt to correct billing errors stipulate to pay attorney’s fees — There is no basis for entitlement to fees where plaintiff did not plead any contractual right to fees, and only statutory basis for fees which could have been pled, claim under Florida Deceptive and Unfair Trade Practices Act, was voluntarily dismissed — Complaint dismissed with prejudice

11 Fla. L. Weekly Supp. 867a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 306b

Insurance — Uninsured motorist — Appeal and cross-appeal of judgment awarding damages, attorney’s fees, and costs to plaintiff who was passenger in vehicle rear-ended by uninsured motorist in action against UM carrier of driver of vehicle in which plaintiff rode — Discovery — Failure to comply — Temporomandibular disorder — No error in denying insurer’s motion for mistrial based on plaintiff’s failure to reveal TMJ before trial where insurer was not deprived of opportunity to discover and prepare for issue since TMJ was noted in medical records which insurer sought and placed into evidence and of which insurer had possession before trial, and plaintiff’s counsel announced during opening statement that TMJ was not connected to collision — No error in denying motion for mistrial based on plaintiff’s failure to list in interrogatories the name of family physician who has previously treated her for same symptoms claimed to be caused by accident where disclosure was made by plaintiff’s orthopedic surgeon testifying from office notes that were submitted into evidence by insurer — Single improper question regarding whether uninsured driver who rear-ended vehicle had consumed alcohol was not so prejudicial as to deny insurer fair trial where jury never heard any testimony from plaintiff on whether driver had been drinking, trial court sustained objection, plaintiff testified that she did not know if driver had been drinking because she had no conversation with driver, and insurer had already depicted driver as being at fault and solely responsible for accident — Evidence — No merit to claim that trial court erred in admitting report of plaintiff’s expert without redacting statement that plaintiff was honest and forthcoming where insurer stipulated to admission of report, and insurer agreed that plaintiff’s counsel could ask expert whether he relied on plaintiff to be forthright — Jury instructions — Trial court’s instruction that it had taken judicial notice of fact that insurer never requested, with or without cause, that plaintiff submit to additional medical examination was harmless error where insurer opened door to issue during voir dire by commenting that it was entitled to only one examination, thereby prompting plaintiff’s counsel to show insurer could have requested second examination if good cause was shown — Argument — No merit to claim that plaintiff’s counsel’s statement that insurer had failed to honor contract although plaintiff had no contract with insurer and portrayal of insurer’s expert as professional witness and high priced doctor were designed to inflame jury to include punitive aspect in damage award where issue of lack of contract was brought up by both parties during trial, evidence revealed that expert charged significant sum for testifying for insurer, insurer failed to make timely objections to remarks, and punitive damages were not sought or awarded — Collateral setoff — Absent stipulation to presentation of PIP setoff evidence to trial judge after trial, trial court abused its discretion by awarding PIP setoff after trial — Where verdict rendered by jury exceeded lower court’s jurisdictional limit, such that reinstatement of verdict would render judgment void, trial court is ordered to enter amended final judgment, without PIP setoff, not exceeding jurisdictional limit — Attorney’s fees — Appellate — Prevailing party appellate fees are awarded to plaintiff

11 Fla. L. Weekly Supp. 307a

Attorney’s fees — Appellate — Insurance — Prevailing party — Award of appellate fees must await determination of ultimate prevailing party in litigation — Motion — Timeliness — Motion for appellate fees served at time of reply brief was tardy where brief was served more than twenty days after answer brief without benefit of request for extension

11 Fla. L. Weekly Supp. 878a

Insurance — Personal injury protection — Error to set aside verdict based on insured’s failure to personally appear at trial where attorney appeared on behalf of insured and was prepared to prosecute case through insured’s deposition and response to interrogatories, testimony of expert and records custodians of medical providers, and insured’s medical bills — Coverage — Late submitted bill — Error to grant judgment notwithstanding verdict based on submission of some medical bills more than thirty days after services were rendered where, even if five untimely bills were excluded, there were still timely bills in evidence — Even though 2001 revision to statute that extends time for filing bills which are originally filed with wrong carrier is inapplicable, reason and intent of statute compels court to find that where diligent effort was made to comply with statutory requirements in as timely a fashion as possible equity should prevail and medical providers should be compensated as determined by jury — Further, insurer suffered no prejudice since untimely receipt of bills did not prevent timely examination of insured — Insurer waived enforcement of statutory time limits by continuing to investigate accident and conducting examination under oath, independent medical examination, and peer review of all bills — Appellate attorney’s fees awarded to prevailing insured

11 Fla. L. Weekly Supp. 241a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 11 Fla. L. Weekly Supp. 343a

Insurance — Personal injury protection — Attorney’s fees — Appellate — Contingency risk multiplier — Where fee agreement between plaintiffs and counsel constituted pure contingency fee arrangement and amount of fee was not to be determined by amount of recovery, counsel was not able to mitigate risk of nonpayment of fee, plaintiff would have had a difficult time obtaining competent counsel if not for potential application of multiplier, plaintiff prevailed on all claims or issues litigated at appellate level, and because law regarding lack of countersignature was unsettled at appellate level plaintiff had at best 50% chance of success at outset of case, lodestar fee is enhanced by multiplier of 2 — Expert witness fee and costs awarded

11 Fla. L. Weekly Supp. 343a

Insurance — Personal injury protection — Attorney’s fees — Appellate — Amount — Fees awarded for 100 hours at hourly rate of $325.00 — Contingency risk multiplier — Where counsel for provider/assignee were employed on pure contingency basis, relevant market required multiplier to obtain competent counsel and provider would have had difficult time obtaining competent counsel if not for potential application of multiplier, counsel were not able to mitigate risk of nonpayment in any way, law regarding countersignature defense was unsettled at appellate level, and provider substantially prevailed on all claims and issues at appellate level, multiplier is applicable — Where chance of success at outset was 50% or less at best, provider is entitled to enhancement of lodestar with multiplier of 2.0 — Expert witness fee, costs, and prejudgment interest awarded

11 Fla. L. Weekly Supp. 961a

Insurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Validity — Insurer’s proposal for settlement was defective and did not comply with offer of judgment statute or rule 1.442 particularity requirements where release included in proposal was ambiguous and could have affected medical provider’s legal rights in related lawsuits pending between provider and insurer — Appellate fees — Provider’s request for appellate attorney’s fees is denied where provider was not prevailing party in summary judgment below, and appeal filed by insurer was not frivolous or devoid of merit