Volume 12

12 Fla. L. Weekly Supp. 131b

Insurance — Personal injury protection — Attorney’s fees — Although sufficiency of findings regarding reasonable hourly rate was not preserved for appeal, court notes that trial court’s finding was sufficient under Florida Patient’s Compensation Fund v. Rowe — Trial court properly ruled inadmissible, as settlement negotiations, a letter from provider’s co-counsel to insurer’s counsel which contained statement which was clearly intended to inform insurer of the strength of plaintiff’s position regarding attorney’s fees with regard to an upcoming fee demand — Contingency risk multiplier — Substantial competent evidence supported lower court’s findings that plaintiff’s chances of success at outset of case were 50%, given legal debate regarding whether insured’s countersignature on claim form was mandatory when form was submitted by assignee — Application of 2.0 multiplier was appropriate — Attorney’s fees generated in litigating appropriateness of multiplier are not recoverable

12 Fla. L. Weekly Supp. 502a

Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Where relevant market requires application of contingency risk multiplier in order for medical provider to obtain competent counsel, amount in controversy was relatively small, results obtained were excellent, contingency fee contract was pure contingency fee agreement, provider’s counsel had no ability to mitigate potential loss, and chance of success at outset of case was less than 50%, multiplier of 2.0 is appropriate — Costs, expert witness fee, and prejudgment interest awarded — Amount — Hours expended — Time spent litigating amount of fees — Request for additional fees for time expended after underlying issues were resolved, in activities associated with obtaining judgment for reasonable attorney’s fees and costs, is denied

12 Fla. L. Weekly Supp. 238a

Attorney’s fees — Insurance — Personal injury protection — Entitlement — Proposal for settlement filed pursuant to section 768.79 is valid and entitles prevailing insurer to award of attorney’s fees — Where medical provider failed to acquiesce to entitlement to fees and costs, insurer is entitled to recover fees for litigating entitlement to fees, regardless of fact that case is hourly fees case rather than contingency fees case — Hours reasonably expended — Provider’s request to reduce fees sought is denied where expert’s opinion that there was excessive billing did not identify specific instances of excessive billing and claim that second defense attorney’s time was duplicative is refuted by time entries and testimony reflecting that attorney was integral part of trial — Expert witness fees and costs awarded

12 Fla. L. Weekly Supp. 330a

Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Abuse of discretion to grant contingency risk multiplier where there is no evidence in record to support trial court’s finding that relevant market conditions require multiplier to obtain competent counsel — No abuse of discretion in using “blended rate” for all work when different attorneys who earn different rates worked on case where insurer did not object to using blended rate below but simply disputed appropriate amount of blended rate, and amount awarded did not exceed amount actually agreed to between attorney and client

12 Fla. L. Weekly Supp. 771b

Attorney’s fees — Insurance — Personal injury protection — Amount — Hourly rate — Complexity of case is not factor to be considered in determining reasonable hourly rate since it is presumed that attorney with greater efficiency and skill will more efficiently prosecute claim, and attorney’s skill and experience should be considered in determining whether hours claimed for case were reasonably necessary — Hours expended — Duplication of effort — Reasonable number of hours expended by each of two attorneys representing insured is determined based on expert testimony — Contingency risk multiplier — Fact that many PIP lawsuits do not require contingency risk multiplier does not negate applicability of multiplier where attorneys agreed to represent insured with risk of non-payment unless there is recovery and no ability to mitigate risk of non-payment, and insured could not obtain competent counsel but for fee multiplier — Amount of contingency risk multiplier for second attorney retained during course of litigation is determined from likelihood of success at outset of second attorney’s representation — No merit to argument that multiplier is inappropriate because initial complaint was subject to dismissal for lack of standing and lack of damages where insurer confessed judgment and paid claims at issue instead of pursuing summary judgment and section 57.105 sanctions — Standard for determining likelihood of success is not subjective standard but constellation of facts attorney should have known existed at moment attorney agreed to pursue claim — Where chances of success were even at outset of first attorney’s representation and less than even at outset of second attorney’s representation, appropriate contingency risk multipliers are 1.5 and 2.0, respectively — Prejudgment interest and costs, including paralegal fees and expert witness fees, are awarded

12 Fla. L. Weekly Supp. 581a

Insurance — Personal injury protection — Coverage — Medical expenses — Summary judgment is granted in favor of medical provider on issues of whether assignment is valid, whether MRI fee schedule limits amount of benefits to be paid for MRI and renders moot issue of reasonableness of bill, whether insured was involved in accident, whether insured was covered by valid policy on date of loss and whether MRI was reasonable, necessary and related to accident where provider provided record evidence meeting its burden of proof and insurer produced no contrary evidence

12 Fla. L. Weekly Supp. 580a

Insurance — Personal injury protection — Coverage — Medical expenses — Summary judgment is granted in favor of medical provider on issues of whether assignment is valid, whether MRI fee schedule limits amount of benefits to be paid for MRI and renders moot issue of reasonableness of bill, whether insured was involved in accident, whether insured was covered by valid policy on date of loss and whether MRI was reasonable, necessary and related to accident where provider provided record evidence meeting its burden of proof and insurer produced no contrary evidence

12 Fla. L. Weekly Supp. 260a

Insurance — Personal injury protection — Standing — Assignment — Validity — Where insured did not give up any rights or benefits under policy and retained right to file suit, document is merely direction to pay and not assignment — Motion to dismiss medical provider’s suit granted

12 Fla. L. Weekly Supp. 211b

Insurance — Personal injury protection — Standing — Assignment — Validity — No error in construing document that qualifies language of assignment by expressly reserving any and all rights of suit as allowing medical provider only right to file claims directly with insurer, not standing to sue

12 Fla. L. Weekly Supp. 248a

Insurance — Personal injury protection — Coverage — Defenses — Failure to attend examination under oath — Where insurer scheduled EUO within thirty days of notice of claim but EUO was not scheduled to take place until over thirty days after notice of claim, insurer is barred from using insured’s failure to attend EUO as defense in suit to recover PIP benefits — Notice of loss — Summary judgment granted in favor of medical provider on defense of failure to provide written proof of loss as soon as practicable where, even if insured failed to provide timely notice, there is no indication of prejudice to insurer — Standing — Assignment — Summary judgment granted in favor of provider on issue of standing where assignment is valid and irrevocable, and policy provision against assignment without consent of insurer does not bar after-loss assignment