IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
SAWGRASS MUTUAL INSURANCE
COMPANY,
Appellant,
v. Case No. 5D15-3061
TERRY MONE AND DIANE MONE,
Appellees.
________________________________/
Opinion filed September 2, 2016
Appeal from the Circuit Court
for Volusia County,
Dennis Craig, Judge.
Jack R. Reiter and Robert D. Peters,
of GrayRobinson, P.A., Miami,
for Appellant.
Mark A. Nation and Paul W. Pritchard,
of The Nation Law Firm, Longwood,
for Appellee.
PER CURIAM.
Sawgrass Mutual Insurance Company (“Sawgrass”) appeals the final judgment
awarding attorney’s fees and costs against it and in favor of Appellees and their counsel.
Sawgrass raises two issues. First, it contends that the trial court erred by applying a
contingency risk multiplier to Appellees’ award of attorney’s fees. Second, Sawgrass
argues, and Appellees agree, that there was a lack of competent substantial evidence to
support the award of $26,918.43 in court costs regarding the services provided by two of
Appellees’ expert witnesses, Nettles & Associates and Reliable Field Services of Central
Florida, Inc. Based upon this proper concession of error, we reverse the award of these
costs from the total costs awarded in the final judgment. Concluding that the application
of the contingency risk multiplier in this case is unwarranted, we also reverse on the first
issue.
Appellees purchased a homeowner’s insurance policy from Sawgrass for their
home in Ormond Beach, Florida. During the policy period, Appellees noticed cracks in
the interior and exterior walls of their home and filed a claim with Sawgrass under their
policy seeking recovery for the damages caused to their home by sinkhole activity. In
response, Sawgrass investigated and ultimately denied the claim, resulting in Appellees
filing suit against Sawgrass for breach of the insurance contract. Following a one-week
jury trial at which Appellees prevailed on their claim, the trial court entered final judgment
for damages in their favor and against Sawgrass.1
Appellees thereafter moved for an award of attorney’s fees pursuant to section
627.428, Florida Statutes (2011), and for court costs. Following an evidentiary hearing,
the trial court entered the final judgment on appeal, making express findings in the
judgment as to the reasonable number of hours expended by Appellees’ counsel and the
reasonable hourly rates for their services rendered in this litigation. This “lodestar figure”
totaled $262,620. See Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1150–51
(Fla. 1985), modified on other grounds by Standard Guar. Ins. Co. v. Quanstrom, 555 So.
1
Sawgrass separately appealed the underlying final judgment of liability, which we
recently affirmed, without opinion. Sawgrass Mut. Ins. Co. v. Mone, No. 5D15-1569, 2016
WL 4159255 (Fla. 5th DCA Aug. 2, 2016).
2
2d 828, 829 (Fla. 1990) (explaining lodestar process to determine reasonable attorney’s
fees). The trial court also found that the case was appropriate for the use of a contingency
risk multiplier under the guidelines set forth in Rowe and Quanstrom, and it applied a 1.5
multiplier to the lodestar amount, resulting in a total attorney’s fee award of $393,930. On
appeal, Sawgrass does not dispute Appellees’ entitlement to attorney’s fees under
section 627.428, nor does it contest the lodestar aspect of the attorney’s fee award.
Sawgrass does, however, argue that the trial court’s use of the multiplier to enhance the
award of attorney’s fees was error because Appellees did not present sufficient evidence
that a multiplier was necessary for them to obtain competent counsel.2
The trial court’s application of a multiplier to an attorney’s fee award is reviewed
under an abuse of discretion standard of review. Holiday v. Nationwide Mut. Fire Ins.,
864 So. 2d 1215, 1218 (Fla. 5th DCA 2004) (“Once it is determined that attorney’s fees
are awardable, the standard of review with respect to the application of a multiplier is one
of abuse of discretion.” (citing United Auto Ins. Co. v. Padron, 775 So. 2d 372 (Fla. 3d
DCA 2000) (additional citation omitted))). In Federated National Insurance Co. v. Joyce,
179 So. 3d 492, 493–94 (Fla. 5th DCA 2015), review granted, SC16-103 (Fla. 2016), we
recently wrote:
In Rowe, the Florida Supreme Court adopted the federal
lodestar approach, which includes “a ‘strong presumption’ that
the lodestar represents the ‘reasonable fee.’” Progressive
Express Ins. Co. v. Schultz, 948 So. 2d 1027, 1030 (Fla. 5th
DCA 2007) (citing Pennsylvania v. Del. Valley Citizens’
Council for Clean Air, 478 U.S. 546, 565, 106 S. Ct. 3088, 92
L.Ed.2d 439 (1986)). “The application of a multiplier is the
2Sawgrass also contends that, as a matter of law, the application of a multiplier is
inherently improper when attorney’s fees are awarded pursuant to a fee-shifting statute,
such as section 627.428, especially when this statute does not expressly authorize the
use of a multiplier. Based upon our resolution of this appeal, we find it unnecessary to
address this argument.
3
exception, not the rule . . . and this presumption is overcome
only in ‘rare’ and ‘exceptional’ circumstances.” State Farm
Fla. Ins. Co. v. Alvarez, 175 So. 3d 352 (Fla. 3d DCA 2015)
(citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 544,
130 S. Ct. 1662, 176 L.Ed.2d 494 (2010)).
The primary issue in this case was whether Appellees’ home was damaged by
sinkhole activity. If it was, then the claim was covered under the policy. If not, then there
was no coverage. Each party presented expert witness testimony at trial as to this issue.
Appellees’ counsel skillfully represented Appellees throughout this litigation, prevailed at
trial, and was statutorily entitled to an award of an attorney’s fee. The lodestar fee
computed to $262,620, which, under Rowe, is strongly presumed to be a reasonable
attorney’s fee. See Schultz, 948 So. 2d at 1030. Although we apply a highly deferential
standard of review of this type of an attorney’s fee award because of the trial court’s “first-
hand knowledge of the case,” “superior understanding of the litigation,” and “extensive
contact with the parties and their counsel,” Alvarez, 175 So. 3d at 355 (quoting Centex-
Rooney Const. Co. v. Martin Cty., 725 So. 2d 1255, 1259 (Fla. 4th DCA 1999)), as
appellate judges, when we review the trial court’s decision for an abuse of discretion, “we
are not required to abandon what we learned as lawyers . . . in evaluating the
reasonableness of an award.” Trumbull Ins. Co. v. Wolentarski, 2 So. 3d 1050, 1057 (Fla.
3d DCA 2009) (citing Ziontz v. Ocean Trail Unit Owners Ass’n, 663 So. 2d 1334, 1335
(Fla. 4th DCA 1993)). We find that this case is not one involving “rare” and “exceptional”
circumstances and, therefore, conclude that the strong presumption against the
application of the contingency risk multiplier has not been overcome.
Accordingly, we reverse, in part, the attorney’s fee award and remand with
directions that the court strike from the final judgment the sum of $131,310 for attorney’s
fees awarded pursuant to the multiplier, resulting in an attorney’s fee award to Appellees’
4
counsel in accordance with the aforementioned lodestar figure. We also reverse, in part,
the award of court costs and remand with directions that the trial court strike from the final
judgment the sum of $26,918.43, reflecting the amount awarded for services rendered by
Nettles & Associates and Reliable Field Services of Central Florida, Inc.
REVERSED in part; and REMANDED, with directions.
LAMBERT, J., and LEMONIDIS, R.C., Associate Judge, concur.
COHEN, J., concurs in part and dissents in part.
5
CASE NO. 5D15-3061
COHEN, J., concurring in part and dissenting in part.
I concur with the majority’s decision to reverse the award of total costs. I also agree
with the majority’s framing of the issue—it should be the most exceptional of cases that
merit the use of a multiplier.3 I am forced to dissent, however, because of the standard of
review in this case. As the majority notes, the trial court’s application of a multiplier to an
attorney’s fee award is reviewed for an abuse of discretion. Holiday v. Nationwide Mut.
Fire Ins., 864 So. 2d 1215, 1218 (Fla. 5th DCA 2004). The trial court conducted an
extensive evidentiary hearing on the fee issue and determined that a multiplier was
appropriate. I cannot conclude that the trial court’s decision constituted an abuse of
discretion; thus, I would affirm the use of a multiplier. I respectfully dissent on this issue
but concur with the majority opinion in all other respects.
3 In fact, I joined in the Federated decision cited by the majority because the record
in that case did not support the use of a multiplier.
6