Florida Peninsula Insurance Company v. Wagner

196 So. 3d 419, 2016 WL 3065065, 2016 Fla. App. LEXIS 8262
CourtDistrict Court of Appeal of Florida
DecidedJune 1, 2016
Docket2D15-1152, 2D15-1790
StatusPublished
Cited by5 cases

This text of 196 So. 3d 419 (Florida Peninsula Insurance Company v. Wagner) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Peninsula Insurance Company v. Wagner, 196 So. 3d 419, 2016 WL 3065065, 2016 Fla. App. LEXIS 8262 (Fla. Ct. App. 2016).

Opinion

LUCAS, Judge.

Florida Peninsula Insurance Company (Florida Peninsula) appeals a final judgment that construed an insurance policy provision in favor of Rhonda and Mark Wagner, as well as the court’s award of attorney’s fees against it following a jury’s verdict on damages. We find merit in Florida Peninsula’s argument that the circuit court erroneously applied a multiplier to the attorney’s fees awarded to the Wag-ners and reverse that order accordingly. We affirm the circuit court’s judgment in all other respects.

I.

The underlying facts in this case are fairly succinct and, in many regards, undisputed. We recount them only insofar as they pertain to the circuit court’s justification for applying a multiplier to the Wag-ners’ award of attorney’s fees.

When a refrigerator water line broke and caused some flooding inside their house, the Wagners sought coverage from théir insurer, Florida Peninsula, under their property insurance policy. Florida Peninsula retained a remediation company to drain the water and dry out the property. But once the house was in a condition to have the extent of its damage ascertained, a dispute arose between the Wag-ners and Florida Peninsula concerning Florida Peninsula’s invocation of an “Option to Repair” provision in the policy, 1 the scope of remedial work that would be re-: quired to repair the damage from the leak, and the selection and hiring of a contractor to effectuate those repairs.

*421 Unable to reach an agreement with their insurer, the Wagners initially -hired .an attorney, a neighbor, who soon realized that he could not adequately represent their interests. Not long after his withdrawal, the Wagners retained the law firm of Dan-ahy & Murray under a contingency fee arrangement. The firm filed the initial complaint on the Wagners’ behalf and capably represented them throughout the underlying litigation. The case proceeded through discovery, motion hearings, a mediation, and a nohjury trial in which the Wagners prevailed on their declaratory- relief claim. A subsequent jury trial on damages yielded a verdict in favor of the Wagners for all of their coverage claims in the total amount of $71,123.79. • • »

The Wagners then filed a motion to recover attorneys’ fees and costs pursuant to section 627.428, Florida Státutes (2013). At the outset of the hearing on the motion, the parties reached a stipulation as to the reasonable number of hours and hourly rates for the Wagners’ individual attorneys and paralegals. The stipulated fee rates ranged between $250 and $450 , an hour, depending on the particular attorney’s experience, with the majority of the work performed by one attorney whose hourly billing rate was $375. an hour. Having agreed upon a lodestar amount of $243,755 in attorney’s fees, the Wagners then urged the circuit court to apply a multiplier of between 1.75 and 2.25 to the .lodestar award.

The Wagners did not testify at the fee hearing. Their trial counsel relayed the Wagners’ experience with their prior attorney.’ He then remarked that he felt their case' was unique and that it had been vigorously litigated. The Wagners also called an expert witness who had contacted a few attorneys prior to the hearing to’ ask whether it was important to have the possibility of a contingency fee multiplier in deciding whether to accept a first-party coverage dispute such as the Wagners’. The -expert never relayed what he learned from those conversations. He did respond affirmatively (but without any elaboration) to the question of whether the skill required to prevail in a case like this one would “limit the number of attorneys” the Wagners could have “gone to for help.” In response, Florida Peninsula’s expert pointed out that there were 258 local attorneys listed in the Martindale Hubbell directory who held themselves out as first-party insurance attorneys. Florida Peninsula also argued that the amount in -dispute and ultimately recovered was already substantially smaller than the amount of stipulated fees the Wagners’ attorneys would recover.

The circuit court agreed with the Wag-ners and applied a 2.0 multiplier to the lodestar award. The court was apparently impressed by the Wagners’ counsel’s willingness to see the matter through trial. Remarking that “there may be multiple attorneys out there that are willing to go to trial, actually going to trial is another issue,” the court likened trial experience to a market condition that necessitated a contingency fee multiplier. Or as the court put it, “It is the rare attorney that actually goes all the way through trial to the completion.” As we will explain, none of these reasons supported the application of a fee multiplier in this coverage dispute.

II.

We review a circuit court’s decision to apply a multiplier to an attorney’s fee award for abuse of discretion. USAA Cas. Ins. Co. v. Prime Care Chiropractic Ctrs., P.A., 93 So.3d 345, 347 (Fla. 2d DCA 2012). A lodestar computation for attorney’s fees — that is, a reasonable hourly rate multiplied by a reasonable number of hours for the work performed — carries “a *422 strong presumption” that it represents a reasonable fee for legal services provided on a contingency basis. Federated Nat’l Ins. Co. v. Joyce, 179 So.3d 492, 493 (Fla. 5th DCA 2015) (quoting Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027, 1030 (Fla. 5th DCA 2007)). Indeed, as the Third District succinctly observed, “[t]he application of a multiplier is the exception, not the rule.” State Farm Fla. Ins. Co. v. Alvarez, 175 So.3d 352, 357 (Fla. 3d DCA 2015). With that in mind, a court must consider three factors before it may award a fee multiplier in a contract dispute:

(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 [Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla.1985)] are applicable, especially, the amount involved [in the litigation], the results obtained, and the type of fee arrangement between the attorney and his [or her] client.

Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 834 (Fla.1990).

In the case at bar, the circuit court’s justification for a multiplier, and the evidence before it, fell short of the dictates of Quanstrom. There was no showing or finding that without the prospect of a multiplier to an otherwise reasonable fee award, the Wagners would have had difficulty finding competent counsel to represent them in this insurance coverage dispute. See Sun Bank of Ocala v. Ford, 564 So.2d 1078, 1079 (Fla.1990) (“[T]here should be evidence in the record, and the trial court should so find, that without risk-enhancement plaintiff would have faced substantial difficulties in finding counsel in the local or other relevant market.” (quoting Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711, 731, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987))); Prime Care Chiropractic Ctrs., P.A.,

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Cite This Page — Counsel Stack

Bluebook (online)
196 So. 3d 419, 2016 WL 3065065, 2016 Fla. App. LEXIS 8262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-peninsula-insurance-company-v-wagner-fladistctapp-2016.