UNITED AUTOMOBILE INSURANCE COMPANY v. MANUEL V. FEIJOO, M.D., AND MANUEL V. FEIJOO, M.D., P.A., A/A/O ERNESTO MORERA ( 2023 )

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
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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
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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.
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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
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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.
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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,
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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.
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