UNITED AUTOMOBILE INSURANCE COMPANY v. MANUEL V. FEIJOO, M.D., AND MANUEL V. FEIJOO, M.D., P.A., A/A/O ERNESTO MORERA

• Court: District Court of Appeal of Florida
• Decided: February 8, 2023
• Docket: 22-0396
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 8, 2023. Not final until disposition of timely filed motion for rehearing.

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No. 3D22-396 Lower Tribunal No. 20-24681 SP ________________

United Automobile Insurance Company, Appellant,

vs.

Manuel V. Feijoo, M.D., and Manuel V. Feijoo, M.D., P.A., a/a/o Ernesto Morera, Appellee.

An Appeal from the County Court for Miami-Dade County, Linda Melendez, Judge.

Michael J. Neimand, for appellant.

Law Offices of Kenneth B. Schurr, P.A., Kenneth B. Schurr and Maylin Castaneda, for appellee.

Before HENDON, GORDO and LOBREE, JJ.

GORDO, J. United Automobile Insurance Company (“United”) appeals the trial

court’s final judgment denying its motion to preclude taxation of expert

witness fees and awarding expert fees. We have jurisdiction. Fla. R. App.

P. 9.030(b)(1)(A). Finding no abuse of discretion in the trial court’s order,

we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 31, 2020, Manuel V. Feijoo, M.D. 1 filed a complaint for

breach of contract of personal injury protection (“PIP”) benefits against

United. On June 8, 2021, United filed its answer denying treatment was

medically necessary and related to the accident and asserted its affirmative

defense that no coverage existed because the policy was not in effect on the

date of loss. Discovery ensued and the parties exchanged interrogatories

and requests for production. On July 28, 2021, United filed its motion for

summary judgment.

On September 30, 2021, United filed a notice of confession as to

entitlement of benefits demanded in the complaint and stipulated to Dr.

Feijoo’s entitlement to attorney’s fees and costs. Dr. Feijoo subsequently

sought reimbursement for 16.42 hours in attorney’s fees. United objected to

1 Ernesto Morera, a United insured, was injured in an automobile accident on September 2, 2019, and assigned his benefits to Dr. Feijoo and Manuel V. Feijoo, M.D., P.A.

2 the amount of hours requested arguing that only 9.2 hours were reasonably

compensable and filed a motion to waive any expert witness fee or in the

alternative sought to preclude taxation of an expert witness fee2. The trial

court denied United’s motion, held a fee hearing and ultimately entered final

judgment awarding Dr. Feijoo 14.2 hours in attorney’s fees and 4.25 hours

of expert witness fees. This appeal followed.

STANDARD OF REVIEW

We review a trial court’s award of expert attorney’s fees under an

abuse of discretion standard. See Travieso v. Travieso, 474 So. 2d 1184,

1186 (Fla. 1985). “We review the trial court’s evidentiary findings regarding

the attorneys’ fee award for competent, substantial evidence.” Universal

Prop. & Cas. Ins. Co. v. Deshpande, 314 So. 3d 416, 419 (Fla. 3d DCA

2020).

LEGAL ANALYSIS

United solely contests the award of expert fees arguing “this simple

PIP case did not require an expert witness fee since the time required for

2 We include the amount of hours at issue to highlight that this is more than a de minimis disagreement. We do not foreclose the possibility that a trial court may exercise its discretion to preclude an expert where the disagreement is de minimis and it finds the testimony would not be helpful to its consideration of fees. We express no opinion as to whether that would be permissible under different facts.

3 preparation and testifying in this case was not burdensome.” We find no

abuse of discretion in the trial court’s award of expert fees where United

litigated the case through summary judgment, filed a notice of confession of

entitlement to benefits nine months after the complaint was filed and

challenged the number of compensable hours requested by the attorney

after agreeing to entitlement of attorney’s fees and costs. See Travieso, 474

So. 2d at 1186 (“We hold that pursuant to section 92.231, expert witness

fees, at the discretion of the trial court, may be taxed as costs for a lawyer

who testifies as an expert as to reasonable attorney’s fees.”); Bystrom v.

Florida Rock Indus., Inc., 513 So. 2d 742, 743 (Fla. 3d DCA 1987) (“[A] trial

judge has discretion to determine reasonable expert witness fees and tax

these fees as costs.”); Sunshine State Ins. Co. v. Davide, 117 So. 3d 1142,

1145–46 (Fla. 3d DCA 2013) (finding under an abuse of discretion standard

of review, where “there is evidence in the record presented by the expert[] to

support the trial court’s conclusion” concerning fees, “we must affirm the

order of the trial court” if it “made detailed findings of fact that are supported

by competent substantial evidence.”). Importantly, while a challenging party

may object to the evidence in support of the hours requested for attorney’s

fees and costs, it may not dictate the type of evidence the prevailing party

presents to the trial court. See Crittenden Orange Blossom Fruit v. Stone,

4 514 So. 2d 351, 352–53 (Fla. 1987) (“[I]t is well settled that the testimony of

an expert witness concerning a reasonable attorney’s fee is necessary to

support the establishment of the fee.”); Brake v. Murphy, 736 So. 2d 745,

747 (Fla. 3d DCA 1999) (“[F]ees cannot be assessed based solely on the

testimony of the attorney claiming the fee, but rather expert testimony must

be offered substantiating the fee.”).

Affirmed.