Progressive Exp. Ins. Co. v. Schultz

948 So. 2d 1027, 2007 WL 542702
CourtDistrict Court of Appeal of Florida
DecidedFebruary 23, 2007
Docket5D06-444
StatusPublished
Cited by17 cases

This text of 948 So. 2d 1027 (Progressive Exp. Ins. Co. v. Schultz) 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
Progressive Exp. Ins. Co. v. Schultz, 948 So. 2d 1027, 2007 WL 542702 (Fla. Ct. App. 2007).

Opinion

948 So.2d 1027 (2007)

PROGRESSIVE EXPRESS INSURANCE COMPANY, Petitioner,
v.
Donald SCHULTZ, Respondent.

No. 5D06-444.

District Court of Appeal of Florida, Fifth District.

February 23, 2007.
Rehearing Denied February 23, 2007.

*1028 Betsy E. Gallagher and Michael C. Clarke, of Kubicki Draper, P.A., Tampa, for Petitioner.

Glenn Klausman, of Jacobs & Goodman, P.A., Altamonte Springs, and Barbara Green, of Barbara Green, P.A., Coral Gables, for Respondent.

Anthony J. Russo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Amicus, Florida Defense Lawyers Association.

John S. Mills of Mills & Carlin, P.A., Jacksonville, for Amicus, Academy of Florida Trial Lawyers.

ON MOTION FOR REHEARING AND CERTIFICATION

ORFINGER, J.

The amended motion for rehearing and certification filed by the respondent, Donald Schultz, is denied. However, we withdraw the opinion issued in this case on October 20, 2006, and substitute the following in its place.

Progressive Express Insurance Company seeks certiorari review of a decision rendered by the circuit court of Seminole County, Florida, acting in its appellate capacity. Progressive contends that the circuit court departed from the essential requirements of law by affirming a county court order awarding attorney's fees totaling $193,750. For the reasons explained below, we agree and grant the petition for certiorari.

Donald Schultz, a Progressive insured, was injured in an automobile accident. The next day, Mr. Schultz began chiropractic treatment with Dr. Jason Masters. After four months of treatment with Dr. Masters, Progressive elected to have Mr. Schultz examined by Dr. David Bennett, also a chiropractor. After Dr. Bennett concluded that no further chiropractic treatment was reasonable, necessary or related to the accident, Progressive stopped paying PIP benefits, leaving Mr. Schultz with a balance of $1,315.30 owed to Dr. Masters.

At Dr. Masters's suggestion, Mr. Schultz consulted with attorney Glen Klausman about pursuing a suit to recover for the unpaid chiropractic treatments. Following *1029 that consultation, Mr. Schultz retained Mr. Klausman, who then filed a PIP suit in county court, seeking to recover the outstanding chiropractic bills, mileage, attorney's fees and costs. Following extensive pretrial discovery, the parties settled the bulk of their dispute, leaving only the issue of the amount of attorney's fees and the appropriateness of a fee multiplier for resolution by the court. After a hearing, at which Progressive conceded Mr. Schultz's entitlement to attorney's fees, the county court approved Mr. Klausman's fee request for 193.75 hours at $400 per hour, resulting in a lodestar fee of $77,500. After the county court approved a 2.5 multiplier, the fee, now set at $1,000 an hour, totaled $193,750.

Progressive appealed the fee award to the circuit court, which affirmed the county court's judgment. Progressive now seeks certiorari review of the circuit court's decision, contending that the use of an attorney's fee multiplier was error and a manifest injustice. Mr. Schultz opposes review, arguing that this case fails to satisfy the high standard necessary for certiorari review. Because we conclude the fee award, particularly the application of a multiplier, is a manifest injustice, we elect to exercise our discretionary certiorari jurisdiction.

Certiorari review of a circuit court acting in its appellate capacity is only available when the circuit court does not afford procedural due process or departs from the essential requirements of law. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995). A departure from the essential requirements of law is more than a simple legal error. "A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice." Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). A "clearly established principle of law" can derive from a number of legal sources, including the constitution, statutes, rules of court and controlling case law. Progressive Express Ins. Co. v. Physician's Injury Care Ctr., Inc., 906 So.2d 1125, 1126-27 (Fla. 5th DCA 2005). In this case, the circuit court departed from controlling statutory and case law in affirming the county court's fee award.

While it would be easy to characterize this case as a run of the mill PIP dispute, admittedly, it was somewhat more than that. Mr. Schultz's attorney expended 193.75 hours, a significant amount of time, in a successful effort to undermine the credibility of Progressive's chiropractic expert.[1] However, it is hardly unusual that one side searches for evidence to impeach or discredit the other side's expert. The additional work is reflected in the lodestar amount, and, consequently, should have little or no impact on the need for a multiplier.

Underlying our analysis is the premise that both the applicable statute, section 627.428(1), Florida Statutes (2003), and the Rules Regulating the Florida Bar require that all fees awarded by the court be reasonable.[2] Section 627.428(1) authorizes the court to award reasonable attorney's fees to be paid by an insurer to an insured in the event the insured brings a successful action against an insurer under an insurance contract. Section 627.428 was intended "to discourage the contesting of valid claims against insurance companies *1030 and to reimburse successful insureds for their attorney's fees when they are compelled to defend or sue to enforce their insurance contracts." Ins. Co. of N. Am. v. Lexow, 602 So.2d 528, 531 (Fla.1992).

In Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985), the supreme court adopted the federal lodestar approach, holding that in determining a reasonable attorney's fee, the federal lodestar methodology, the product of the reasonable hours expended times the hourly rate, "provides a suitable foundation for an objective structure." The federal lodestar approach establishes a "strong presumption" that the lodestar represents the "reasonable fee." Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986).

The concept of a fee multiplier first appeared in Florida jurisprudence in Rowe, and was refined by the supreme court in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990).[3]Quanstrom set forth a number of factors to be considered in evaluating the need for a multiplier, including:

(1) [W]hether the relevant market requires a contingency fee multiplier to obtain competent counsel;
(2) [W]hether the attorney was able to mitigate the risk of nonpayment in any way; and
(3) [W]hether any of the factors set forth in Rowe are applicable. . . .

555 So.2d at 834. In later cases, the ability to obtain competent counsel rose to prominence in determining under what circumstances a multiplier was necessary and appropriate. See Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403, 411 (Fla.1999) (holding that "[a] primary rationale for the contingency risk multiplier is to provide access to competent counsel for those who could not otherwise afford it").

Because Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

William Joyce v. Federated National Insurance Company
228 So. 3d 1122 (Supreme Court of Florida, 2017)
Garrison Property & Casualty Insurance Co. v. Rohrbacher
204 So. 3d 154 (District Court of Appeal of Florida, 2016)
Sawgrass Mutual Insurance Co. v. Mone
201 So. 3d 182 (District Court of Appeal of Florida, 2016)
Florida Peninsula Insurance Company v. Wagner
196 So. 3d 419 (District Court of Appeal of Florida, 2016)
Federated National Insurance Co. v. Joyce
179 So. 3d 492 (District Court of Appeal of Florida, 2015)
Do v. Geico General Insurance Co.
137 So. 3d 1039 (District Court of Appeal of Florida, 2014)
USAA Casualty Insurance Co. v. Prime Care Chiropractic Centers, P.A.
93 So. 3d 345 (District Court of Appeal of Florida, 2012)
Dish Network Service L.L.C. v. Myers
87 So. 3d 72 (District Court of Appeal of Florida, 2012)
American Family Mutual Insurance Co. v. Alvis
72 So. 3d 314 (District Court of Appeal of Florida, 2011)
Massie v. PROGRESSIVE EXPRESS INSURANCE COMPANY
25 So. 3d 584 (District Court of Appeal of Florida, 2009)
Jerkins v. USF & G Specialty Ins. Co.
982 So. 2d 15 (District Court of Appeal of Florida, 2008)
Eckhardt v. 424 Hintze Management, LLC
969 So. 2d 1219 (District Court of Appeal of Florida, 2007)
STATE FARM FLORIDA INS. CO. v. Lorenzo
969 So. 2d 393 (District Court of Appeal of Florida, 2007)
Spence v. Florida Unemployment Appeals Commission
954 So. 2d 1249 (District Court of Appeal of Florida, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
948 So. 2d 1027, 2007 WL 542702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/progressive-exp-ins-co-v-schultz-fladistctapp-2007.