Volume 12

12 Fla. L. Weekly Supp. 470a

Employee Retirement Income Security Act — Disability insurance — Attorney’s fees — Interest — Federal preemption — Motion for rehearing of final judgment awarding interest and attorney’s fees to prevailing claimant in action for review of denial of disability income benefits is denied — Where both issue of prejudgment interest and attorney’s fees clearly relate to ERISA plan ERISA preempts application of state law as to both issues — Where claimant has been denied use of funds for ten years due to administrator’s improper denial of benefits, failure to award prejudgment interest on sums due would clearly fall short of making claimant whole, and court exercises discretion to award interest — Where administrator’s vocational review of claimant’s capabilities following termination of benefits was fatally flawed by mischaracterization of her position, insurer has ability to satisfy fee award, fee award will deter insurer and others from acting arbitrarily in characterization of claimants’ jobs, claimant is seeking to benefit only herself and not all participants of plan and there are no strikingly significant legal questions regarding ERISA present in case, and administrator’s position in case is without merit, award of attorney’s fees is supported by evidence and law even though final judgment’s rationale for awarding fees on basis that claimant was prevailing party may not have been proper under ERISA

12 Fla. L. Weekly Supp. 327a

Attorney’s fees — Insurance — Personal injury protection — Prevailing party — Confession of judgment — No error in finding that medical provider was prevailing party entitled to award of attorney’s fees where insurer confessed judgment by paying bills within 8 days after PIP suit was filed, but still defended suit based on lack of notice of intent to initiate litigation — Demand letter — Error to enter final judgment in favor of medical provider despite lack of notice of intent to initiate litigation where insured received medical treatment after October 1, 2001, and her policy was renewed after effective date of section 627.736(11) and, therefore, statute was applicable and notice of intent to initiate litigation was required — Issue of notice of intent is moot, however, due to insurer’s full payment of medical bills prior to entry of final judgment — Contingency risk multiplier — Abuse of discretion to award multiplier where Quanstrom requirements were not met

12 Fla. L. Weekly Supp. 1182a

Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — If a party fails to acquiesce to moving party’s entitlement to attorney’s fees, movant is entitled to recover all fees, including fees incurred with post-trial discovery — A party’s acquiescence or concession to entitlement must be clear and unequivocal from the record — In case at issue, it is unclear from evidence in record that letter from defendant’s counsel to plaintiff’s counsel was intended as an unequivocal acquiescence to plaintiff’s entitlement to attorney’s fees — Contingency risk multiplier of 1.5 is reasonable where likelihood of success at outset was approximately even, relevant market requires contingency risk multiplier to obtain competent counsel in PIP cases, defendant aggressively litigates its cases, so that a case against this particular defendant is less desirable than cases against other insurers, and plaintiff’s counsel was unable to mitigate risk of nonpayment — Other factors also justify use of multiplier, including amount of risk involved, results obtained, and type of fee arrangement between attorney and client — Prejudgment interest, expert witness fees, and reasonable costs awarded

12 Fla. L. Weekly Supp. 1179b

Attorney’s fees — Insurance — Personal injury protection — Amount — Attorney’s fees awarded without application of contingency risk multiplier — Expert witness fee, costs and prejudgment interest awarded

12 Fla. L. Weekly Supp. 1176a

Landlord-tenant — Public housing — Eviction — Premature complaint — Eviction complaint filed before time for tenant to request formal grievance hearing had expired is premature — Complaint dismissed without prejudice

12 Fla. L. Weekly Supp. 1106a

Attorney’s fees — Insurance — Personal injury protection — Amount — Contingency risk multiplier — Where relevant market requires application of multiplier to obtain competent counsel, amount in controversy was small and results obtained excellent, agreement between insured and counsel was pure contingency fee arrangement, and chance of success at outset of case was less than 50%, multiplier of 2.0 is appropriate — Expert witness fees, costs and prejudgment interest awarded

12 Fla. L. Weekly Supp. 1093a

Attorney’s fees — Insurance — Personal injury protection — Amount — Contingency risk multiplier — Where medical provider’s expert testified that relevant market requires contingency risk multiplier to obtain competent counsel in PIP claims such as provider’s case, necessity of multiplier was further evidenced by numerous defenses and risks associated with claim, and provider’s chances of success were unlikely at outset, multiplier of 2.0 is appropriate — Prejudgment interest, expert witness fee and costs awarded

12 Fla. L. Weekly Supp. 1088a

Attorney’s fees — Insurance — Personal injury protection — Amount — Contingency risk multiplier — Where fee agreement between medical provider and its counsel was pure contingency fee contract, provider’s likelihood of success was approximately even at outset, relevant market requires multiplier to obtain competent counsel where ultimate amount in controversy was less than $15, case against insurer is less desirable than case against other insurers because insurer aggressively litigates its cases, provider’s counsel was unable to mitigate the risk of nonpayment, and provider’s counsel succeeded in obtaining summary judgment for entire amount sought, multiplier of 1.5 is reasonable and appropriate — Prejudgment interest, expert witness fees and costs awarded

12 Fla. L. Weekly Supp. 1084a

Attorney’s fees — Insurance — Personal injury protection — Amount — Contingency risk multiplier — Where medical provider’s counsel was retained on pure contingency basis, but relevant market did not require contingency risk multiplier to obtain competent counsel, multiplier is not applicable — Prejudgment interest, expert witness fee and costs awarded

12 Fla. L. Weekly Supp. 1083a

Attorney’s fees — Insurance — Personal injury protection — Amount — Contingency risk multiplier — Where fee agreement between medical provider and counsel constituted pure contingency fee arrangement, and counsel for provider was unable to mitigate risk of nonpayment in any way, but relevant market did not require multiplier to obtain competent counsel, multiplier is not applicable — Expert witness fees, costs and prejudgment interest awarded