Holiday v. Nationwide Mut. Fire Ins.

864 So. 2d 1215, 2004 WL 119317
CourtDistrict Court of Appeal of Florida
DecidedJanuary 23, 2004
Docket5D02-3369, 5D02-3491
StatusPublished
Cited by16 cases

This text of 864 So. 2d 1215 (Holiday v. Nationwide Mut. Fire Ins.) 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
Holiday v. Nationwide Mut. Fire Ins., 864 So. 2d 1215, 2004 WL 119317 (Fla. Ct. App. 2004).

Opinion

864 So.2d 1215 (2004)

Pamela HOLIDAY, Appellant/Cross-Appellee,
v.
NATIONWIDE MUTUAL FIRE INSURANCE, etc., et al., Appellee/Cross-Appellant.

Nos. 5D02-3369, 5D02-3491.

District Court of Appeal of Florida, Fifth District.

January 23, 2004.

*1216 Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Appellee/Cross-Appellant, Nationwide Mutual Fire Insurance Company.

Randy E. Schimmelpfennig of Billings, Cunningham, Morgan & Boatwright, P.A., Orlando for Appellee/Cross-Appellant, Leonard Shealey.

*1217 MONACO, J.

Pamela Holiday and Leonard Shealey, who were plaintiffs below, successfully brought an action for damages against their property insurance carrier, Nationwide Mutual Fire Insurance Company. Two of the parties, Ms. Holiday and Nationwide Mutual Fire Insurance Company, have respectively appealed and cross-appealed the order rendered by the trial court granting appellant, Ms. Holiday, and cross-appellee, Mr. Shealey, attorneys' fees founded on section 627.428, Florida Statutes (2002), and applying a contingency risk multiplier to the Shealey fee, but declining to do so with respect to the fee for Ms. Holiday's attorney. Appellee/cross-appellant, Nationwide, seeks review of the award of fees to Mr. Shealey because of the imposition of the multiplier. A review of Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), and its progeny leads us to the conclusion that the attorney's fee award was correct with respect to Mr. Shealey, but erroneous as it pertained to Ms. Holiday, and that a contingency risk multiplier should have been applied to both fees.

The suit that gave rise to the attorneys' fee controversy was an action to recover insurance proceeds from a policy of homeowner's insurance issued by Nationwide following a fire to the residence of the parties. It appears that Ms. Holiday and Mr. Shealey purchased a home jointly, and insured it with Nationwide. After the couple ended their relationship, a suspicious conflagration occurred in the residence and substantial damage was done to it as a result. When arson was determined to be the cause of the fire, and there was some indication that Mr. Shealey might have been the culprit, Nationwide declined coverage. Ms. Holiday and Mr. Shealey brought suit, and eventually succeeded in recovering a verdict for the full amount sought by them after a four-day jury trial.

Ms. Holiday and Mr. Shealey then each filed motions to obtain an award of attorney's fees in accordance with section 627.428, Florida Statutes (2002). After several evidentiary hearings at which a number of witnesses testified with respect to whether a contingency risk multiplier was warranted, the trial court issued an order awarding attorney's fees in favor of both of the insureds, but applying the contingency multiplier only to the Shealey fee.

The trial judge concluded that Ms. Holiday's attorney had reasonably expended 310 hours on the case, that $225 per hour was a reasonable hourly rate, and that the lodestar figure for this labor was $69,750. He found, however, that the contingency fee agreement executed by Ms. Holiday and her attorney would not permit a fee beyond one-third of the recovery, and accordingly reduced the award to $22,333.00.

With respect to Mr. Shealey's counsel the trial judge found that 204 hours was reasonably expended, and that $225 was a reasonable hourly rate. Because he concluded that Mr. Shealey's fee agreement authorized a contingency risk multiplier of 2.0, however, he awarded a fee of $91,800.

Ms. Holiday seeks review of the lower court's order because no contingency risk multiplier was awarded for her counsel's labor against Nationwide. Nationwide feels that the trial judge was correct with regard to the Holiday fee, but cross-appeals the fee awarded to Mr. Shealey because it asserts that no contingency risk multiplier was warranted under the circumstances of this case. We consider these in reverse order.

I. Whether a contingency risk multiplier was appropriate.

Section 627.428, Florida Statutes (2002), authorizes the award of a reasonable attorney's *1218 fee to an insured who prevails against his or her carrier after being required to bring suit to establish a valid claim. Subsection (1) of the statute says, more specifically:

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... 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.

The legislative intention underpinning section 627.428 is to "discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney's fees when they are compelled to defend or sue to enforce their insurance contracts." See Insurance Co. of N. Am. v. Lexow, 602 So.2d 528, 531 (Fla.1992). Thus, if a dispute is within the scope of this statute and an insured must enforce his or her rights under a policy, and if a judgment is rendered against the insurer, then the insurer is required to pay attorney's fees for the insured or beneficiary. See Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403 (Fla.1999); Bassette v. Standard Fire Ins. Co., 803 So.2d 744, 746 (Fla. 2d DCA 2001). To learn whether a contingent risk multiplier may be applicable to fees awarded under section 627.428, we must examine Quanstrom.

The Supreme Court in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990), identified three different categories of cases in which attorney's fees may be awarded by a court. The Court concluded that the second of those categories, which applies principally to tort and contract cases, including cases such as the present controversy involving an insured and his or her insurance company, is one in which a contingency risk multiplier may be appropriate. In Quanstrom the Court reaffirmed the principles set forth in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), with respect to these cases, and added three additional factors to be considered in determining whether a multiplier should be applied:

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 or her client.

In the present case the trial court made specific findings of fact after having heard extensive testimony. He evaluated the likelihood of Mr. Shealey prevailing at less than 50%, and after hearing conflicting experts found that very few attorneys in Orlando would have taken this case without the potential for a multiplier. The court was persuaded that "both attorneys took the case as a `flyer' in the hope of `getting lucky' and recovering a huge fee." He then found that a 2.0 multiplier was appropriate for Mr. Shealey's counsel.

Once it is determined that attorney's fees are awardable, the standard of review with respect to the application of a multiplier is one of abuse of discretion. See

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Cite This Page — Counsel Stack

Bluebook (online)
864 So. 2d 1215, 2004 WL 119317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holiday-v-nationwide-mut-fire-ins-fladistctapp-2004.