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FLORIDA LAW WEEKLY

VOLUME 47, NUMBER 11

CASES FROM THE WEEK MARCH 18, 2022

COURT AFFIRMS THE PLAINTIFF’S ATTORNEYS’ FEES AWARD, MULTIPLIER AND ALL (IN A PIP CASE)

United Automobile Insurance Co. v. Coastal Radiology, 47 Fla. L. Weekly D587 (Fla. 3^rd DCA Mar. 9, 2022):

The trial judge set forth specific findings regarding the hourly rates, the number of hours reasonably expended, and the appropriateness of the factors required by Florida Patient’s Compensation Fund v. Rowe. The appellate court affirmed, because it found the trial judge’s findings were supported by competent substantial evidence, and further concluded that the trial court also properly awarded pre-judgment interest on those attorney’s fees.

TRIAL COURT ERRED BY DISQUALIFYING COUNSEL FROM REPRESENTING DEFENSE FIRM FOR SOLE PURPOSE OF OPPOSING PLAINTIFF’S MOTION TO DISQUALIFY THE DEFENSE FIRM IN THE UNDERLYING ACTION – PLAINTIFF WAS WITHOUT STANDING TO SEEK DISQUALIFICATION OF THE DEFENSE FIRM’S ATTORNEYS

Akerman, LLP v. MSP Recovery Claims, Series LLC, 47 Fla. L. Weekly D592 (Fla. 3^rd DCA Mar. 9, 2022):

The plaintiff below, MSP Recovery Claims Series, moved to disqualify an attorney and his law firm from representing the Akerman firm in defending a disqualification motion.

In the underlying litigation between the plaintiff and USAA (represented by Akerman), MSP moved to disqualify Akerman two years after the firm entered an appearance, asserting that the attorneys had nonwaivable conflicts due to the representation of other insurance companies and related litigation.

The attorney and his law firm made a limited appearance for the sole purpose of representing Akerman and Greenberg on MSP’s motion to disqualify. Despite the limited scope of representation by the attorney, MSP moved to disqualify them.

The appellate court found that the plaintiff was without standing to seek disqualification of the lawyer and his firm. The disqualification of a party’s chosen counsel is an extraordinary remedy that should only be resorted to sparingly. In any event, there was no basis to disqualify anyway, because the representation would not have resulted in the violation of any rules of professional conduct.

CIRCUIT COURT ERRED IN CONSIDERING INSURER’S “ACCORD AND SATISFACTION” AFFIRMATIVE DEFENSE ON A MOTION TO DISMISS, BECAUSE THE ALLEGATION SUPPORTING THE DEFENSE DID NOT APPEAR WITHIN THE FOUR CORNERS OF THE COMPLAINT

Quintana v. Peoples Trust Insurance Co., 47 Fla. L. Weekly D607 (Fla. 4^th DCA Mar. 9, 2022):

COURT RULES PLAINTIFF’S COUNSEL NOT ENTITLED TO APPELLATE FEES UNDER §627.728, FLA. STAT., FOR WORK HANDLING AN APPEAL ON VENUE

Robles v. United Automobile Insurance Co., 47 Fla. L. Weekly D620 (Fla. 1^st DCA Mar. 9, 2022):

The insured sued United Automobile Insurance Co. based on an issue with the insurance contract between them. The insured successfully appealed a non-final order transferring venue. Upon winning the appeal, the insured sought an award of appellate attorney’s fees pursuant to §627.428, Fla. Stat.

The First District found that in its close reading of the statute, it found that the statute does not authorize an appellate court to award fees at the conclusion of an interlocutory appeal. The statute requiring the award of fees does not kick in until the rendition of a judgment or decree. Because there was neither a judgment nor a decree in favor of the insured after the appeal concluded (the court left room for the possibility that there would be one), it ruled that it had no authority to grant the request for fees at that time.

The court did say that if there were ultimately a recovery, that the trial court could consider the time spent by the attorney that pursued the appeal, as part of the determination of reasonable fees.

TRIAL COURT APPLIED INCORRECT LEGAL STANDARD IN ALLOWING THE PLAINTIFF TO AMEND HER COMPLAINT TO ADD A CLAIM FOR PUNITIVE DAMAGES

Kohl’s Department Store v. Young, 47 Fla. L. Weekly D624 (Fla. 5^th DCA Mar. 11, 2022):

The plaintiff attempted to return items at a Kohl’s during separate visits.  A Kohl’s employee suspected the transactions were fraudulent, and a Kohl’s loss prevention officer detained the plaintiff while law enforcement responded. The plaintiff claimed that the officer verbally harassed her, denied her needed prescription medication, and also denied her the ability to use the restroom.

Following the dismissal of the criminal charges, the plaintiff filed suit against Kohl’s for false imprisonment, intentional infliction of emotional distress and other claims. Two years later, she sought leave to amend her complaint to add a claim for punitive damages, which the trial court granted, based on the general and liberal “leave to amend law” and not after requiring a proffer, etc. that an amendment for punitive damages requires.

The failure to comply with the essential requirements of law necessitated reversal.