FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 35

CASES FROM THE WEEK OF AUGUST 31, 2018

NO ABUSE OF DISCRETION IN THE AWARD OF A 2.0 CONTINGENCY FEE MULTIPLIER--RISK MULTIPLIERS ARE NO LONGER LIMITED TO RARE AND EXCEPTIONAL CASES.

Citizens Property Insurance Co. v. Laguerre, 43 Fla. L. Weekly D1934 (Fla. 3rd DCA August 22, 2018):

After Hurricane Wilma, the insured made a claim for wind damage against Citizens. Citizens paid approximately $8,000 on a claim that an appraisal estimate showed was worth about $60,000.

After the appraisal umpire issued an award in the amount of $27,000, Citizens agreed the plaintiff was entitled to attorney’s fees. At the fee hearing, plaintiff presented expert testimony of an attorney who testified that these types of “first party/late notice cases” have become very difficult to handle.

As the attorney described it, there is a great disparity between the insured and the insurance company. The insurance company can hire very skilled lawyers to challenge every aspect of the case, and appeal every aspect of the case.

Insureds, however, have a difficult time finding capable and qualified lawyers because of the risk involved. The cases take a long time to mature, and are very risky.

Conversely, Citizens presented the testimony of a fee expert who testified that plaintiff’s attorneys had thousands and thousands of these cases, and this was a run of the mill property case, which was not complex, and concerned standard defenses, therefore not warranting a multiplier. The expert also testified that neither the plaintiff nor the expert presented any evidence that the client called around town, and could not find somebody to take the case.

After the fee hearing, the trial court entered an order applying an hourly rate of $325, finding 185 hours was appropriate, and creating a lodestar of $60,125. The trial court also applied a 2.0 multiplier based on findings that (1) the relevant market required a fee multiplier to obtain competent counsel; (2) the plaintiff’s counsel faced substantial risk of nonpayment; (3) the likelihood of success at the outset (defendant’s evaluation of the claim reflected in the proposal for settlement of $2,000 which had been served on the plaintiff); and (4) the novelty and difficulty of the question involved, and the results obtained.

On appeal, Citizens contended the multiplier was not warranted because there was no evidence that plaintiff had difficulty obtaining competent counsel, the results obtained did not warrant one, and the complexity of the issues could not be the basis for awarding a multiplier.

Based on the Florida Supreme Court’s decision in Joyce v. Federated, 228 So.3d 1122, 1131-32 (Fla. 2017), it is no longer the case, that multipliers are only proper in rare and exceptional circumstances.

The court looked to the current law on fee multipliers, and noted the factors from Rowe which a trial court uses to determine if a fee is reasonable.

The lodestar approach (finding the reasonable hourly rate and multiplying it by the hours that were reasonably expended in litigation) is the basic starting point for fees in tort and contract cases.

In clarifying the jurisprudence on contingency fee multipliers in Joyce, the Florida Supreme Court rejected limiting the use of multipliers only to rare and exceptional circumstances, disapproving of the Alvarez case to the extent it was inconsistent with Joyce.

In Joyce, after the insurer denied coverage of a claim based on alleged material misrepresentations, the insureds hired an attorney on a contingency basis, because they could not afford one at an hourly rate to sue the insurer. After the settlement, the parties stipulated that the insureds were entitled to a reasonable fee, and then the judge awarded a multiplier.

The Fifth District reversed, concluding that the lodestar represents a “reasonable fee” which is the presumptive reasonable fee. It further found that supreme court precedent never limited the use of contingency fee multipliers only to “rare and exceptional circumstances.” Instead, the fee multiplier is intended to incentivize attorneys to take potentially difficult or complex cases.

Applying those principles, the court affirmed the award of the 2.0 multiplier.

In reconciling Quanstrom’s relevant market factor with the Joyce decision, Joyce explained that trial courts must analyze that factor to assess specifically whether there are attorneys in the relevant market who both have the skills to handle the case effectively, and who would not take the case without the availability of a multiplier. The Florida Supreme Court has made clear that trial courts must consider the relevant market itself, not the attorney’s client’s actual experience in the market.

The plaintiff’s expert in this case, testified that insurance companies have a lot of money and a lot of skilled lawyers, and insureds have a difficult time finding capable and qualified lawyers because of the risk involved. They have to hire experts. There is a lot of time involved and if they do not prevail it is a failure.

Citizens never cross-examined the plaintiff’s expert concerning the application of a multiplier, and all Citizens’ expert testified was that the plaintiff had not presented any evidence that she had difficulty finding a lawyer to represent her.

The court found that trial judges may rely on expert testimony that a party would have difficulty securing counsel without the opportunity of a multiplier in support of the imposition of the multiplier. It is not really 100% clear how the court distinguished that “can’t find a lawyer” prong.

The court also was persuaded by Citizens’ filing of a proposal for settlement for $2,000 in light of the ultimate result, over $27,000.

Thus, despite Citizens’ expert’s testimony that this was a run-of-the-mill case that used standard defenses, the case had still gone on for over four years.

Because there was competent substantial evidence to support the award of the multiplier under the principles of Rowe, Quanstrom and Joyce, the court found there was no abuse of discretion in awarding the 2.0 contingency fee multiplier. This case really seems to be important authority for supporting the award of a multiplier in any difficult contingency fee case.

TRIAL COURT MUST ALWAYS FILE THE THREE-STEP PROCEDURE SET OUT IN MELBOURNE V. FLORIDA, WHEN A PARTY OBJECTS TO THE EXERCISE OF A PEREMPTORY CHALLENGE ON THE GROUND THAT IT IS MADE ON AN IMPROPER DISCRIMINATORY BASIS--NEW TRIAL REQUIRED WHERE TRIAL COURT FAILED TO DETERMINE GENUINENESS OF STATE’S FACIALLY RACE-NEUTRAL EXPLANATION FOR ITS CHALLENGE TO AN AFRICAN-AMERICAN PROSPECTIVE JUROR.

Johnson v. State, 43 Fla. L. Weekly D1942 (Fla. 4th DCA August 22, 2018):

A criminal defendant appealed his conviction based on the trial judge having failed to conduct a proper Melbourne analysis, before allowing a peremptory challenge to a prospective African-American juror to be exercised by the State.

During jury selection, the State exercised a challenge on an African-American male prospective juror, and at defendant’s request, the trial asked the State for a race-neutral reason. The State answered that the juror indicated he would prefer “CSI evidence,” and also noted that the defense had stricken two black females in the first round of strikes and two black individuals for cause.

The court then concluded that the reason was race-neutral. There was no additional argument or objection or “genuineness” analysis. At the conclusion of jury selection, the defense advised that the panel was not acceptable based on the denial of his Melbourne objection to the State’s strike.

The defendant contended that the record did not support that the trial court properly conducted the genuineness analysis under step 3. The defendant also argued that the record was devoid of any indication that the trial court considered or weighed any relevant circumstances in deciding whether the State’s strike was discriminatory.

The Fourth District then looked to the more recent decision in Spencer v. State, 238 So.3d 708 (Fla. 2018).

The issue in Spencer was whether the trial court is required to perform a full genuineness analysis on the record every time a party initiates a Melbourne challenge, and whether an opponent of a strike must expressly make a claim of pretext to support the claim.

The Spencer court stated that if a proponent’s reason for the challenge is race, ethnic or gender-neutral, then the trial court should inquire of the opponent of the strike.

Recognizing that Spencer was a plurality opinion, the Fourth District did explicitly hold that Melbourne requires a three-step process, and it is the intent of our supreme court in adopting that procedure to require all three steps be followed. Whether “requested” or not, all three steps are necessary, and the failure to conduct a genuineness analysis necessitated a new trial.

TRIAL COURT ERRED IN DISMISSING COMPLAINT WHERE PLAINTIFF’S FIRST MOTION TO AMEND COMPLAINT WAS PENDING--PLAINTIFF HAD AN ABSOLUTE RIGHT TO AMEND COMPLAINT ONCE ANY TIME BEFORE A RESPONSIVE PLEADING WAS FILED.

Carter v. Mark I. Grumet Revocable Trust, 43 Fla. L. Weekly D1955 (Fla. 4th DCA August 22, 2018):

A trial court has no discretion to deny a plaintiff’s first amendment to a complaint before a responsive pleading has been served. Rather, a party is entitled to amend a pleading once as a matter of course, at any time before a responsive pleading is served pursuant to rule 1.190(a).

Because of this right, the trial court erred in dismissing plaintiff’s complaint.

A NOTICE OF HEARING ON A MOTION FOR ATTORNEY’S FEES, CONSTITUTES RECORD ACTIVITY SUFFICIENT TO PRECLUDE DISMISSAL.

Robinson v. Marek, 43 Fla. L. Weekly D1965 (Fla. 2nd DCA August 24, 2018):

Record activity is defined as the filing of pleadings, order of court, or otherwise, and the test for activity is a bright-line rule under which any filing of record is sufficient to preclude dismissal.

Previous interpretations of rule 1.420(e), required a filing that “affirmatively moved a case forward,” but there is no longer a distinction between active or passive record activity. The rule requires only a cursory review of the record to determine whether there is record activity, and establishes a bright-line test that is easy to apply, and relieves the trial court and litigants of the burden of determining and guessing whether activity is merely passive or active.

A notice of hearing filed within the 60-day grace period did constitute record activity sufficient to avoid dismissal under rule 1.420(e).

TRIAL COURT SHOULD HAVE DISMISSED PLAINTIFF’S MEDICAL MALPRACTICE COMPLAINT FOR FAILING TO OBTAIN A WRITTEN VERIFIED MEDICAL EXPERT OPINION TO CORROBORATE THE CLAIMS BEFORE FILING SUIT-NO WAIVER OF PRESUIT REQUIREMENTS BY THE DEFENDANT’S FAILURE TO RESPOND TO THE PLAINTIFF’S REQUEST FOR MEDICAL RECORDS WHERE DEFENDANT DID NOT REFUSE TO PRODUCE THE RECORDS, BUT SIMPLY ASKED FOR ADDITIONAL INFORMATION TO ENSURE THAT THE PERSONS SEEKING THE CONFIDENTIAL RECORDS WERE LEGALLY AUTHORIZED TO RECEIVE THEM.

Shands Jackson Medical Center v. Pusha, 43 Fla. L. Weekly D1980 (Fla. 1st DCA August 24, 2018):

Shands moved to dismiss the plaintiff’s medical malpractice/wrongful death complaint. Shands argued that the plaintiff’s suit should be dismissed because she failed to comply with the Medical Malpractice Act, by obtaining a verified written medical expert opinion corroborating her claims before she filed suit. She countered that the hospital waived this presuit requirement when it failed to respond to her request for the decedent’s medical records.

Shands argued no waiver occurred because the hospital did not refuse to produce those records, but rather asked for additional information to ensure that the persons seeking the decedent’s confidential medical records were legally authorized to receive those records. The trial court had denied Shands’ motion to dismiss, concluding that it waived its entitlement to an expert opinion by failing to produce the decedent’s medical records in response to the plaintiff’s request.

The discrete question raised in the petition was whether the court--in presuit--can seek verification that a person requesting confidential medical records is legally authorized to obtain those records.

The plaintiff’s lawyer had identified the plaintiff as the decedent’s personal representative, but did not reflect that the firm represented anyone else, or even that the decedent was deceased or that the plaintiff was the decedent’s mother. The letter contained no reference to the Medical Malpractice Act.

When Shands’ agent responded to the request, it informed plaintiff’s counsel that the request was not in compliance with HIPAA and did not include a valid power of attorney authorizing the release of the records.

Plaintiff’s lawyer then asserted that his staff probably contacted Shands after receipt and probably explained to them that she was deceased, and no power of attorney was necessary, but because there was no paper file, plaintiff’s attorney was unable to recall exactly what transpired, and only testified regarding the firm’s general practice.

Ultimately, the court ruled that the trial judge departed from the essential requirements of law when it concluded that Shands was required to produce the decedent’s confidential medical records in response to incomplete and conflicting requests from the plaintiff. The hospital never received a valid authorization for the release of records, so it was not required to produce them. Because Shands did not wholly refuse to produce the records, the plaintiff was required to obtain a written medical expert opinion corroborating her claim before she filed suit. However, because she never obtained such an opinion and the statute ran, the court ruled that the complaint had to be dismissed with prejudice.