Third District Court of Appeal
State of Florida
Opinion filed April 28, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1175
Lower Tribunal No. 19-10248
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Advanced Physical Therapy of Kendall, LLC,
a/a/o Schiller Ladouceur,
Appellant,
vs.
Camrac, LLC, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Alan S. Fine,
Judge.
Tenenbaum Law Group, PLLC, and Jason Tenenbaum, for appellant.
McFarlane Law, and William J. McFarlane and Michael K. Mittelmark
(Coral Springs), for appellees.
Before FERNANDEZ, SCALES and LOBREE, JJ.
SCALES, J.
In what we characterize as a first-party PIP (personal injury protection)
case, governed by New York’s No-Fault Motor Vehicle Law, Appellant, the
plaintiff below, Advanced Physical Therapy of Kendall, LLC, appeals an
order of the trial court that limited its attorney’s fee recovery to $1,360.00.
Specifically, Appellant challenges the trial court’s determinations that (i)
Appellant’s proposal for settlement was not cognizable under applicable
New York substantive law, and (ii) the instant case was not so novel or
unique as to warrant fees in excess of the fee cap imposed by New York law.
We affirm because the trial court correctly disregarded Appellant’s proposal
for settlement, and did not abuse its discretion in determining the instant
case was subject to New York’s fee cap.
I. Facts
Co-Appellee Camrac, LLC, a car-rental agency, rented one of its cars
to Florida resident Schiller Ladouceur (“Ladouceur”) in Connecticut. While
the car is owned by Camrac, it is registered to a Camrac affiliate, co-Appellee
EAN Holdings, LLC. In August 2017, Ladouceur was driving the car in New
York State when it was involved in an accident. Ladouceur was injured in the
accident and was treated for his injuries by Appellant in Florida. Ladouceur
assigned his PIP benefits to Appellant.
2
On April 3, 2019, Appellant filed suit against Appellees 1 seeking
reimbursement for $27,340.34 in bills for medical services Appellant
provided to Ladouceur. Appellant’s operative, single-count complaint
(alleging breach of contract) sought recovery pursuant to Florida’s PIP law,
specifically section 627.736 of the Florida Statutes. 2 In November 2019,
Appellant served a single, joint proposal for settlement on Appellees seeking
$10,000.00 to resolve its claim. 3
Shortly after the filing of Appellant’s April 28, 2020 operative complaint,
the parties settled the case and, on May 1, 2020, entered into a joint
stipulation whereby: (i) the parties stipulated that New York’s No-Fault Motor
Vehicle Law governed the dispute; (ii) Appellees agreed to pay Appellant
$27,340.34, plus interest, in PIP benefits (an amount within New York’s no-
1
Our record does not reflect why co-Appellee Elrac, LLC was named as a
defendant in the operative complaint.
2
While the record is not clear whether Appellees are self-insured or are
themselves insurers, the record indicates that Appellees assumed the
obligation to pay no-fault benefits. According to sections 5103 and 5107,
New York Insurance Law, every insurance policy on a motor vehicle
operated in New York must provide a first-party benefit to a non-resident
motorist.
3
Appellees assert several grounds as to why Appellant’s proposal for
settlement was defective. Given our decision that the trial court was correct
in determining that Appellant’s proposal for settlement is not cognizable
under New York substantive law, we need not, and do not, address these
arguments.
3
fault coverage limits); and (iii) the parties stipulated that Appellant was
entitled to an additional award of attorney’s fees. The parties’ stipulation
provided that, if the parties were unable to amicably resolve Appellant’s fee
claim, the trial court would adjudicate the claim.
After the parties failed to reach an agreement on Appellant’s fee claim,
Appellant filed its motion for attorney’s fees. In Appellant’s fee motion,
Appellant noted that its proposal for settlement had sought $10,000, while
the parties subsequently agreed to a payment of $27,340.34, plus interest,
thus triggering recovery under Florida’s proposal for settlement statute
(section 768.69). Appellant’s fee motion asserted that Appellant was entitled
to a reasonable hourly attorney’s fee either because: (i) under Florida law,
Appellant’s recovery exceeded more than twenty-five percent of the proposal
for settlement; or, in the alternative, (ii) under New York law, the case was of
a “novel and unique nature” requiring “extraordinary skills or services,” and
therefore, an award of attorney’s fees may exceed the statutory cap of
$1,360. See 11 NYCRR § 65-4.6(b) and (e). 4
4
Administrative regulations promulgated under Article 51, New York
Insurance Law, provide (i) a cap on the amount of fees a plaintiff in a PIP
case may recover, and (ii) a mechanism for a plaintiff to obtain a fee award
in excess of this cap. Subsection 65-4.6(b) of these motor vehicle insurance
regulations provides, in pertinent part, as follows: “[T]he payment of the
applicant’s attorney’s fee by the insurer shall be limited to 20 percent of the
total amount of first-party benefits . . . , plus interest thereon, for each
4
After conducting a hearing on Appellant’s fee motion, the trial court
entered the order on appeal that awarded Appellant $1,360 in fees. The trial
court’s order, awarding the maximum allowable under the fee cap imposed
by New York law, determined that the case was “typical” and that “there is
no record support for it being unique or extraordinary.” In this same order,
the trial court found that Florida’s proposal for settlement statute was
inapplicable to the case because the parties had stipulated that the case was
governed by New York law.
II. Analysis
Appellant raises two challenges to the trial court’s order that limited its
attorney’s fees to $1,360. Appellant argues the trial court erred both in
determining that (i) Appellant’s proposal for settlement was ineffective
because Florida’s proposal for settlement law is inapplicable to the case, and
(ii) the case was subject to New York’s No-Fault Motor Vehicle Law’s
attorney fee cap because this case was not “of such a novel or unique nature
as to require extraordinary skills or services.”
applicant with whom the respective parties have agreed and resolved
disputes, subject to a maximum fee of $1,360.” Subsection 65-4.6(e)
provides, in pertinent part, as follows: “[I]f . . . a court determines that the
issues in dispute were of such a novel or unique nature as to require
extraordinary skills or services, the . . . court may award an attorney’s fee in
excess of the limitations set forth in this section.”
5
As to the first argument, the trial court correctly determined that
Florida’s proposal for settlement statute is inapplicable. The parties here
expressly stipulated that New York law applied to the car accident and
governed their dispute. Section 768.79 of the Florida Statutes provides
parties, in certain defined cases, with a substantive right to attorney’s fees
under certain prescribed conditions. See S.E. Floating Docks, Inc. v. Auto-
Owners Ins. Co., 82 So 3d 73, 81 (Fla. 2012) (holding “that because an
award of attorney’s fees under Florida’s offer of judgment statute is a
substantive right, section 768.79 will not apply in instances where the parties
have agreed to be governed by the substantive law of another jurisdiction”).
By the parties’ express stipulation, the substantive law of New York, and not
of Florida, applied in this case; hence, section 768.79 is not applicable to this
case.
We also affirm the trial court’s determination that New York’s cap on
attorney’s fees in PIP cases limited Appellant’s fee recovery to $1,360
because the case is not “of such a novel or unique nature as to require
extraordinary skills or services.” We write on this issue only to explain, in
what appears to be a case of first impression in Florida, which standard of
review we applied to the trial court’s ruling in this regard.
6
Both parties argued in their briefs that the trial court’s ruling involved a
question of statutory construction – presumably construing New York’s
administrative regulation capping fees in PIP cases – and thus was subject
to this Court’s de novo review. We disagree, and instead employ an abuse
of discretion standard to review a trial court’s determination of whether a
particular case, governed by New York’s No-Fault Motor Vehicle Law, is
subject to the applicable regulation’s cap on attorney’s fees.
Pursuant to the text of the applicable New York regulation, the fee cap
is inapplicable only if the trial court determines the case is “of such a novel
or unique nature as to require extraordinary skills or services.” We consider
such a determination to be akin to the determination a Florida trial court must
make when awarding fees to a prevailing party. Among the factors a trial
court considers, particularly in determining the applicability of a multiplier, is
the novelty, complexity or difficulty of the questions involved in the case. See
Standard Guar. Ins. Co. v. Quanstrom,
555 So. 2d 828, 833-34 (Fla. 1990);
U.S. Sec. Ins. Co. v. LaPour,
617 So. 2d 347, 348 (Fla. 3d DCA 1993) (“Here,
there was nothing novel or complex about the [PIP] claim, nor was any
significant legal expertise required to complete the representation.”); see
also R. Regulating Fla. Bar 4-1.5(b)(1)(A). It is well settled that we review
such trial court determinations under an abuse of discretion standard. See
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Sunshine State Ins. Co. v. Davide,
117 So. 3d 1142, 1144 (Fla. 3d DCA
2013); LaPour,
617 So. 2d at 348. While this case may not present as the
typical Florida PIP case, nothing in the record would allow us to conclude
that the trial court abused its discretion by determining that the case was not
of such a novel or unique nature so as to require extraordinary legal skills or
services. Canakaris v. Canakaris,
382 So. 2d 1197, 1203 (Fla. 1980)
(observing that an abuse of discretion does not occur if reasonable persons
could differ about the view adopted by the trial court).
III. Conclusion
In this case, the trial court did not err by determining Florida’s proposal
for settlement statute was inapplicable, nor did it abuse its discretion in
determining that the instant PIP case was not “of such a novel or unique
nature as to require extraordinary skills or services.”
Affirmed.
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