Multiplier upheld

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 38

CASES FROM THE WEEK OF SEPTEMBER 26, 2025

NO ABUSE OF DISCRETION IN APPLYING A 2.0 CONTINGENCY FEE MULTIPLIER TO THE INSURED PLAINTIFF’S FEE AWARD

Universal Property and Casualty Co. v. Aragones, 50 Fla. L. Weekly D2070 (Fla. 3d DCA Sept. 17, 2025):

In reviewing the trial court’s award to determine whether there was an abuse of discretion, the court found the trial court’s findings were supported by competent substantial evidence.

The trial court considered (1) whether the relevant market required a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; (3) whether any of the factors set forth in Rowe are applicable especially the amount involved, the results obtained and the type of fee arrangements between the attorney and his client.

The Florida Supreme Court has reiterated that the primary rationale for the contingency fee risk multiplier is to provide access to competent counsel for those who could not otherwise afford it.

The rationale of the relevant market is to assess not just whether there are attorneys in any given area but specifically whether there are attorneys in the relevant market who both have the skills to handle the case effectively, and whether they would have taken the case absent the availability of a contingency fee multiplier.

After performing its analysis, the court affirmed the trial court’s award of the 2.0 multiplier.

TRIAL COURT ERRED IN CONCLUDING AS A MATTER OF LAW ONCE AN EMPLOYEE CLOCKS OUT FROM WORK THE EMPLOYER MAY NO LONGER BE SUBJECT TO LIABILITY – OFF-DUTY EMPLOYEES MAY RE-ENGAGE IN OR REENTER THEIR EMPLOYMENT-RELATED RESPONSIBILITIES DEPENDING ON THE UNIQUE FACTS OF THE SPECIFIC CASE

Woods v. Walmart Stores, 50 Fla. L. Weekly D2087 (Fla. 5th DCA Sept. 19, 2025):

The plaintiff clocked out from his job at Walmart, spilled a drink on the floor on his way out of the store, and then took protective steps consistent with the store’s policies to remediate it. The plaintiff, who slipped, and was injured 79 seconds later, claimed that Walmart was liable because the employee had re-engaged in his employment role.

Walmart countered that once the employee had clocked out it was no longer responsible for his conduct. The trial court agreed with Walmart, concluding as a matter of law that once an employee clocks out from work, the employer may no longer be subject to liability.

The court found the trial judge reached this conclusion in error, noting that it is possible for an off-duty employee to re-engage or re-enter employment-related responsibilities (depending on the unique facts of the case).

However, while the trial court erred in making this particular ruling, the court still affirmed because the record reflected that there was no basis for a tort claim against Walmart under these specific facts (while the court did not say so explicitly, apparently it would not hold Walmart liable for injuries suffered by someone who fell on a liquid that was only on the floor for 79 seconds).

NO ERROR IN INSTRUCTING JURY THAT THE INSURANCE COMPANY’S BAD FAITH HAD TO BE THE CAUSE OF THE UNDERLYING EXCESS JUDGMENT, AND IN USING A VERDICT FORM THAT REQUIRED THE JURY TO DECIDE WHETHER SUCH A CAUSAL CONNECTION EXISTED

Hancock v. Florida Farm Bureau, 50 Fla. L. Weekly D2087 (Fla. 2nd DCA Sept. 19, 2025):

A woman with a $50,000 insurance policy with Florida Farm Bureau struck and killed a bicyclist. Three days later, Florida Farm Bureau contacted the decedent’s wife (and ultimately personal representative) of his estate to discuss available insurance proceeds.

The adjuster continued to contact the widow in the days and weeks that followed and on two occasions went to the woman’s home and taped an envelope containing a $50,000 check to the front door. The adjuster was not invited nor welcome and the checks were returned.

The tortfeasor petitioned for bankruptcy a year and a half later. The next month, the plaintiff filed a wrongful death lawsuit which resulted in a verdict of over $13M dollars.

The plaintiff filed a bad faith lawsuit against the insurance company as the tortfeasor’s assignee. The complaint did not contain any specific details regarding the insurance company’s alleged bad faith actions. After some discovery it became clear that the plaintiff’s bad faith related to the insurer’s conduct in the days after the accident; namely, after the adjuster was told that the widow was attending her deceased husband’s viewing and funeral and could not deal with settling an insurance claim, the adjuster continued to contact her multiple times, telling her that she had to accept the check and sign the settlement documents. The estate alleged that the adjuster’s aggressive, intimidating, frustrating, and otherwise very upsetting conduct impeded a settlement.

When the case went to trial, the parties argued over the jury instructions. The parties diverged on the issue of causation.

The estate argued that there was a standard instruction on causation FSJI 404.6(b).  Florida Farm Bureau objected and proposed using FSJI 404.6(a) instead, on general legal cause.

The plaintiff then argued that there should be no instruction on causation on the bad faith at all, finding that causation was already encompassed by requiring a finding that the insurer could have and should have settled.

The trial court disagreed. It then adopted the insurer’s proposed causation instruction which instructed the jury, “In order for the actions of [FFB] to be considered bad faith, they must be the cause of the excess judgment against the [tortfeasor].” The court then gave the bad faith legal cause instruction of 404.6(a).

Bad faith law was designed to protect insureds who have paid their premiums and fulfilled their contractual obligations by cooperating fully with the insurer in the resolution of claims. Consistent with this design, an insured or third-party claimant may bring a third-party bad faith cause of action when the insurer has breached its duty of good faith, and that breach results in an excess judgment being entered against its insured.

The estate argued that the trial court’s causation instruction and verdict form went beyond causation. The trial court added a sentence instructing the jury that the insurer’s actions had to be the cause of the excess judgment.

The verdict form then asked the jury to decide whether the insurer’s bad faith was the legal cause of the excess judgment. The plaintiff argued that these instructions were erroneous and confusing and focused the jury’s attention on the cause of the excess judgment in the wrongful death suit and that the focus should have been on the cause of the failure to settle the wrongful death claim.

The court disagreed. It found that the supreme court instructs that bad faith requires a breach that results in an excess judgment, and that the damages claimed—the excess judgment—must be caused by the bad faith. The court concluded that the instruction was not confusing and was consistent with applicable law and pertinent to the issues.

Alternatively, the estate argued that the trial court erred by giving any causation instruction because the bad faith instruction already encompassed causation the estate had to prove.

The court again disagreed, finding that the trial court’s bad faith instruction told the jury that bad faith is the failure to settle when an insurer could have and should have done so had it acted fairly and honestly toward its insured.

The court found that the instructions aligned with the pronouncement by the Supreme Court that a claimant may bring a bad faith action when the insurer breaches its duty of good faith and the breach results in an excess judgment.

Ultimately, the court concluded that the trial judge gave a jury instruction that was legally accurate and related to an element of the estate’s claim that the parties intensely disputed at trial.