Florida Peninsula Insurance Company v. Wagner , 2016 Fla. App. LEXIS 8262 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FLORIDA PENINSULA INSURANCE )
COMPANY, )
)
Appellant, )
)
v. ) Case No. 2D15-1152
) 2D15-1790
MARK WAGNER and RHONDA )
WAGNER, ) CONSOLIDATED
)
Appellees. )
)
Opinion filed June 1, 2016.
Appeals from the Circuit Court for Pinellas
County; Pamela A.M. Campbell, Judge.
David C. Borucke and Robert C. Hubbard
of Cole, Scott & Kissane, P.A., Tampa, for
Appellant.
Raymond T. Elligett, Jr. and Amy S.
Farrior of Buell & Elligett, P.A., Tampa;
Howard W. Weber of Danahy & Murray,
Tampa, for Appellees.
LUCAS, Judge.
Florida Peninsula Insurance Company (Florida Peninsula) appeals a final
judgment that construed an insurance policy provision in favor of Rhonda and Mark
Wagner, as well as the court's award of attorney's fees against it following a jury's
verdict on damages. We find merit in Florida Peninsula's argument that the circuit court
erroneously applied a multiplier to the attorney's fees awarded to the Wagners and
reverse that order accordingly. We affirm the circuit court's judgment in all other
respects.
I.
The underlying facts in this case are fairly succinct and, in many regards,
undisputed. We recount them only insofar as they pertain to the circuit court's
justification for applying a multiplier to the Wagners' award of attorney's fees.
When a refrigerator water line broke and caused some flooding inside
their house, the Wagners sought coverage from their insurer, Florida Peninsula, under
their property insurance policy. Florida Peninsula retained a remediation company to
drain the water and dry out the property. But once the house was in a condition to have
the extent of its damage ascertained, a dispute arose between the Wagners and Florida
Peninsula concerning Florida Peninsula's invocation of an "Option to Repair" provision
in the policy, 1 the scope of remedial work that would be required to repair the damage
from the leak, and the selection and hiring of a contractor to effectuate those repairs.
1
That provision afforded Florida Peninsula the following option to provide
coverage for "Coverage A—Dwelling" claims: "If we give you written notice within 30
days after we receive your signed, sworn proof of loss . . . [w]e may repair the damaged
property with material of like kind and quality without deduction for depreciation." We
agree with the circuit court's conclusion that Florida Peninsula did not properly exercise
this option because Florida Peninsula's "referral" of contractors to the Wagners (who the
Wagners, not Florida Peninsula, would then engage) did not satisfy the provision's
obligation that "we [Florida Peninsula] would be required to repair the damaged
property." See Wash. Nat'l Ins. Corp. v. Ruderman, 117 So. 3d 943, 949-50 (Fla. 2013)
("[I]t has long been a tenet of Florida insurance that an insurer, as the writer of an
insurance policy, is bound by the language of the policy, which is to be construed
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Unable to reach an agreement with their insurer, the Wagners initially
hired an attorney, a neighbor, who soon realized that he could not adequately represent
their interests. Not long after his withdrawal, the Wagners retained the law firm of
Danahy & Murray under a contingency fee arrangement. The firm filed the initial
complaint on the Wagners' behalf and capably represented them throughout the
underlying litigation. The case proceeded through discovery, motion hearings, a
mediation, and a nonjury trial in which the Wagners prevailed on their declaratory relief
claim. A subsequent jury trial on damages yielded a verdict in favor of the Wagners for
all of their coverage claims in the total amount of $71,123.79.
The Wagners then filed a motion to recover attorneys' fees and costs
pursuant to section 627.428, Florida Statutes (2013). At the outset of the hearing on the
motion, the parties reached a stipulation as to the reasonable number of hours and
hourly rates for the Wagners' individual attorneys and paralegals. The stipulated fee
rates ranged between $250 and $450 an hour, depending on the particular attorney's
experience, with the majority of the work performed by one attorney whose hourly billing
rate was $375 an hour. Having agreed upon a lodestar amount of $243,755 in
attorney's fees, the Wagners then urged the circuit court to apply a multiplier of between
1.75 and 2.25 to the lodestar award.
The Wagners did not testify at the fee hearing. Their trial counsel relayed
the Wagners' experience with their prior attorney. He then remarked that he felt their
case was unique and that it had been vigorously litigated. The Wagners also called an
liberally in favor of the insured and strictly against the insurer." (quoting Berkshire Life
Ins. Co. v. Adelberg, 698 So. 2d 828, 830 (Fla. 1997))).
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expert witness who had contacted a few attorneys prior to the hearing to ask whether it
was important to have the possibility of a contingency fee multiplier in deciding whether
to accept a first-party coverage dispute such as the Wagners'. The expert never
relayed what he learned from those conversations. He did respond affirmatively (but
without any elaboration) to the question of whether the skill required to prevail in a case
like this one would "limit the number of attorneys" the Wagners could have "gone to for
help." In response, Florida Peninsula's expert pointed out that there were 258 local
attorneys listed in the Martindale Hubbell directory who held themselves out as first-
party insurance attorneys. Florida Peninsula also argued that the amount in dispute
and ultimately recovered was already substantially smaller than the amount of stipulated
fees the Wagners' attorneys would recover.
The circuit court agreed with the Wagners and applied a 2.0 multiplier to
the lodestar award. The court was apparently impressed by the Wagners' counsel's
willingness to see the matter through trial. Remarking that "there may be multiple
attorneys out there that are willing to go to trial, actually going to trial is another issue,"
the court likened trial experience to a market condition that necessitated a contingency
fee multiplier. Or as the court put it, "It is the rare attorney that actually goes all the way
through trial to the completion." As we will explain, none of these reasons supported
the application of a fee multiplier in this coverage dispute.
II.
We review a circuit court's decision to apply a multiplier to an attorney's
fee award for abuse of discretion. USAA Cas. Ins. Co. v. Prime Care Chiropractic Ctrs.,
P.A., 93 So. 3d 345, 347 (Fla. 2d DCA 2012). A lodestar computation for attorney's
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fees—that is, a reasonable hourly rate multiplied by a reasonable number of hours for
the work performed—carries "a strong presumption" that it represents a reasonable fee
for legal services provided on a contingency basis. Federated Nat'l Ins. Co. v. Joyce,
179 So. 3d 492, 493 (Fla. 5th DCA 2015) (quoting Progressive Express Ins. Co. v.
Schultz, 948 So. 2d 1027, 10130 (Fla. 5th DCA 2007)). Indeed, as the Third District
succinctly observed, "[t]he application of a multiplier is the exception, not the rule."
State Farm Fla. Ins. Co. v. Alvarez, 175 So. 3d 352, 357 (Fla. 3d DCA 2015). With that
in mind, a court must consider three factors before it may award a fee multiplier in a
contract dispute:
(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 [Florida
Patient's Compensation Fund v. Rowe, 472 So. 2d 1145,
1150 (Fla. 1985)] are applicable, especially, the amount
involved [in the litigation], the results obtained, and the type
of fee arrangement between the attorney and his [or her]
client.
Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 834 (Fla. 1990).
In the case at bar, the circuit court's justification for a multiplier, and the
evidence before it, fell short of the dictates of Quanstrom. There was no showing or
finding that without the prospect of a multiplier to an otherwise reasonable fee award,
the Wagners would have had difficulty finding competent counsel to represent them in
this insurance coverage dispute. See Sun Bank of Ocala v. Ford, 564 So. 2d 1078,
1079 (Fla. 1990) ("[T]here should be evidence in the record, and the trial court should
so find, that without risk-enhancement plaintiff would have faced substantial difficulties
in finding counsel in the local or other relevant market." (quoting Pennsylvania v. Del.
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Valley Citizens' Council for Clean Air, 483 U.S. 711, 731 (1987))); Prime Care
Chiropractic Ctrs., P.A., 93 So. 3d at 347 ("If there is no evidence that the relevant
market required a contingency fee multiplier to obtain competent counsel, then a
multiplier should not be awarded."). Simply put, there was no evidence that the Tampa
Bay legal market could not provide competent counsel for the Wagners' case at the
prevailing hourly rates. See Quanstrom, 555 So. 2d at 834. Certainly, most (all?)
attorneys would prefer to collect twice their market rate at the conclusion of a successful
contingency fee case, a point that perhaps needed no expert testimony to illuminate. It
does not follow, though, that that preference would create a dearth of competent
lawyers who would have taken this case at the prevailing rate. On that critical point, this
record is silent.
Nor can we accept the circuit court's justification that the case's resolution
through a trial, in and of itself, merited a fee multiplier. Again, a contingency fee
multiplier under Quanstrom serves to correct a deficiency in a legal market for
representation. See Sun Bank of Ocala, 564 So. 2d at 1079; Prime Care Chiropractic
Ctrs., P.A., 93 So. 3d at 347; see also Bell v. U.S.B. Acquisition Co., Inc., 734 So. 2d
403, 411 (Fla. 1999) ("A primary rationale for the contingency risk multiplier is to provide
access to competent counsel for those who could not otherwise afford it."). A
Quanstrom fee multiplier is not a surrogate for a sanction, and it should not be applied
based solely, and in hindsight, upon how far along in the civil adjudication process a
particular case happened to be resolved. 2 There was no evidence presented below, nor
2
The relative duration of the litigation is accounted for in the number of
hours awarded under the lodestar computation.
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any specific finding by the circuit court, that the Wagners could not find and retain
competent counsel for their case through trial with the prospect of remuneration at a
prevailing market rate. 3
III.
Accordingly, we reverse the circuit court's order granting the Wagners'
motion for attorney's fees to the extent that it applied a multiplier to the fee award and
remand with instructions to enter a new order consistent with this opinion. We affirm the
judgment of the circuit court in all other respects.
Affirmed in part; reversed in part; remanded with instructions.
MORRIS and BLACK, JJ., Concur.
3
We recognize the waning use of trials to resolve many civil disputes. See
Steven Wisotsky, Sounds and Images of Persuasion: A Primer, 84 Fla. B.J. 40, 40
(2010) (noting that in "this era of the 'vanishing trial,' " less than two percent of cases
filed are tried to verdict). But we do not glean from this record that an insurance
coverage trial has become such a Halley's Comet event that the majority of local,
competent insurance lawyers would refuse to handle such a matter for anything less
than double their market rates.
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