Always include an alternative fee arrangement!

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 10

CASES FROM THE WEEK OF MARCH 13, 2026

TRIAL COURT ERRED BY APPLYING A CONTINGENCY FEE MULTIPLIER WHERE THERE WAS NO TESTIMONY THAT THE CLIENTS COULD NOT HAVE OBTAINED COUNSEL ABSENT A MULTIPLIER AND REDUCES HOURLY RATE TO THE PARTIES’ CONTRACTUALLY AGREED CAP – COURT ALSO ERRED IN AWARDING HOURLY RATE IN EXCESS OF WHAT COUNSEL AND CLIENTS AGREED TO WHERE AGREEMENT LACKED A SUFFICIENT ALTERNATIVE FEE CLAUSE

Bankers Life and Casualty Co. v. Borew, 51 Fla. L. Weekly D396 (Fla. 4th DCA Mar. 4, 2026):

The plaintiff insureds contracted with the defendant insurer for long-term care benefits. Under the policy, they became eligible for up to $1,470 weekly in unlimited long-term care benefits for home-based attendant care. Years later, the defendant suddenly stopped paying and accused them of fraudulent billing, then sued them for fraud, unjust enrichment, and declaratory relief, seeking more than $700,000.

After a seven-day trial, the jury found for the insureds. The defendant recovered nothing. The jury awarded the male insured $455,857 in past damages and $229,320 for the present value of future damages, and it awarded the female insured $240,786.  The defendant stipulated entitlement to fees, and the fight became about “how much.”

The fee evidence included the retainer language the insureds signed: attorney work at $450 per hour and paralegal work at $100 per hour, with an agreement to accept court-awarded fees as counsel’s sole compensation if the insureds prevailed.  The trial court set a $525 hourly rate for both lawyers and applied a 2.5 multiplier, resulting in a combined fee award exceeding $2.56 million.

The appellate court reversed both the hourly rate and the multiplier.

On the multiplier, the court reiterated that the requesting party must present evidence of the Quanstrom factors, and it emphasized the “relevant market” requirement: if there is no evidence that the market required a multiplier to obtain competent counsel, then the trial court should not award a multiplier.

Here, no witness testified that the insureds could not have obtained counsel absent the availability of a multiplier. Thus, the court held that the award of one was error.

The court also found the trial court erred by awarding an hourly rate above what the insureds agreed was reasonable. The fee agreements expressly set the attorney rate at $450 and paralegal rate at $100.

The court pointed out that many fee contracts now contain “alternative fee recovery clauses,” allowing the attorney to receive a fee that is either (a) specified if the fee is paid by the client (as set forth in this fee contract), or (b) a court awarded reasonable fee if the fee is paid by a third-party pursuant to a fee-shifting provision.

This fee agreement set forth the hourly rate, but the appellate court concluded it did not include the requisite “alternative” fee recovery clause.

The court reversed and remanded for entry of an award that was consistent with the contractually set forth amount without any multiplier.

TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR HOSPITAL AND EMT OBTAIN WHERE EMT POSTED PHOTO OF PLAINTIFF’S SON’S LEG WITHOUT PERMISSION AFTER A FATAL MOTORCYCLE ACCIDENT AND INJURY—HOSPITAL AND EMT ADVISED THE FATHER OF THE VIOLATION AND DELETED THE POST BEFORE FATHER SAW IT – FATHER FAILED TO MEET HIS BURDEN TO SHOW INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS OR INVASION OF PRIVACY

Lopez v. Kendall Healthcare Group, LTD, 51 Fla. L. Weekly D410 (Fla. 3d DCA Mar. 4, 2026):

The decedent was injured in a motorcycle accident and was transported to the defendant hospital. During treatment, one EMT took a photo of the patient’s leg injury without consent, shared it with other hospital employees, and posted it to Instagram, tagging another EMT who was visible in the photo. The other EMT then reposted it.

The privacy violation was reported three days later and the hospital began an investigation. The hospital established the patient’s identity, but the family was not notified until three weeks later, when the hospital’s privacy officer told the father that a photo had been taken and posted, that it had been deleted, and that the EMTs were retrained and disciplined. At that time, the patient was on life support, and the father was deciding whether to discontinue life support; the patient died two days later.

The father, as personal representative, sued the hospital and the EMTs for intentional infliction of emotional distress and invasion of privacy. The trial court granted summary judgment for the defendants on both counts.

The appellate court affirmed.

On the claims for intentional infliction of emotional distress, the court emphasized that “outrageous” conduct is decided as a matter of law.  It agreed that the privacy officer’s disclosure to the father was not outrageous as a matter of law. 

As to the EMT’s taking and posting of the photo, the court found it significant that the claim was not made by the person in the photo (the deceased son), and instead, was being made by the father. The court cited case law noting that there is no claim by a parent who was not present when the harm was inflicted against the child.

The court distinguished the Fifth District’s decision in Williams v. City of Minneola, where that court recognized a claim for reckless infliction of emotional distress when an investigating police officer took a video taken of a deceased, fourteen-year-old boy’s autopsy, after he overdosed, and showed it to others. The court held that a cause of action for outrageous conduct could lie for the parents under those circumstances where there were pictures taken of their dead child, even though they were not present.

The court distinguished Minneola, finding that the young man in this case was alive (though unconscious) at the time the photo was taken. It made clear that Minneola was limited to “dead” bodies, and the foreseeability of the emotional distress the loved ones would experience knowing of the behavior.

The court drew what it viewed as a necessary limiting principle: i.e., that Minneola’s rationale centered on misconduct toward a dead body and the particular vulnerability of survivors in that context, compared to this case that involved a patient who was alive at the time of the photo and the post.

As to the invasion of privacy claims, the court noted the father did not bring the claim in the name of the deceased son or the estate; he brought it as an invasion of his own privacy, which required him to show that the taking and posting of the son’s photo invaded the father’s privacy interests. 

Here, there was no dispute that neither the patient nor the father were identifiable in the photo or post, and there was no evidence the father or any relatives ever saw the posting before it was removed. 

Concluding that the father failed to meet the “heavy burden” required for this unusual kind of relatives-privacy claim, particularly where the post did not identify the patient and did not reveal the hospital’s name, the court affirmed entry of summary judgment for the defendants.