Ottaviano v. Nautilus Ins. Co.

Decision Date07 June 2010
Docket NumberCase No. 8:08-cv-2204-T-33TGW
Citation717 F.Supp.2d 1259
PartiesJames OTTAVIANO, Plaintiff, v. NAUTILUS INS. CO., Defendant.
CourtU.S. District Court — Middle District of Florida
717 F.Supp.2d 1259

James OTTAVIANO, Plaintiff,
v.
NAUTILUS INS. CO., Defendant.


Case No. 8:08-cv-2204-T-33TGW.

United States District Court,
M.D. Florida,
Tampa Division.


June 7, 2010.

717 F.Supp.2d 1262

Kim Edwin Wells, Well Law Group, PA, Brandon, FL, for Plaintiff.

Charles M.P. George, George, Hartz & Lundeen, Coral Gables, FL, for Defendant.

ORDER

VIRGINIA M. HERNANDEZ COVINGTON, District Judge.

This matter is before the Court on consideration of United States Magistrate Judge Thomas G. Wilson's report and recommendation (Doc. # 44), filed on May 18, 2010. In his report and recommendation, Judge Wilson recommends that Plaintiff's Motion for Award of Reasonable Attorney Fees and Costs (Doc. # 26) be granted in part.

As of this date, there are no objections to the report and recommendation, and the time for the parties to file such objections has elapsed.

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir.1982), cert. denied, 459 U.S. 1112, 103 S.Ct. 744, 74 L.Ed.2d 964 (1983).

In the absence of specific objections, there is no requirement that a district judge review factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir.1993), and the court may accept, reject or modify, in whole or in part, the findings and recommendations. 28 U.S.C. § 636(b)(1)(C). The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir.1994); Castro Bobadilla v. Reno, 826 F.Supp. 1428, 1431-32 (S.D.Fla.1993), aff'd, 28 F.3d 116 (11th Cir.1994) (Table).

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) United States Magistrate Judge Thomas G. Wilson's report and recommendation (Doc. # 44) is ACCEPTED and ADOPTED.
(2) Plaintiff's Motion for Award of Reasonable Attorney Fees and Costs (Doc. # 26) is GRANTED to the extent that Plaintiff's counsel is awarded $27,520 in attorney's fees pursuant to Florida Statute § 627.428, plus statutory interest, and $1,425 in costs pursuant to Rule 54(d) of the Federal Rules of Civil Procedure.

REPORT AND RECOMMENDATION

THOMAS G. WILSON, United States Magistrate Judge.

It was alleged in this lawsuit that the defendant breached its insurance contract with the plaintiff, a pool contractor, when it declined coverage for a claim by the Girl Scouts that the plaintiff constructed a defective swimming pool. The lawsuit was settled when the defendant agreed that the insurance policy provided coverage for the Girl Scouts' claim.

The plaintiff has filed a Motion for Award of Reasonable Attorney Fees and Costs (Doc. 26). The defendant argues that the amount of the attorneys' fee is unreasonable and the costs are excessive (Doc. 35). The motion was referred to me for resolution.1 Having considered the

717 F.Supp.2d 1263
materials submitted and the governing legal standards, I recommend that the plaintiff be awarded an attorneys' fee of $27,520, and $1,425 in costs.

I.

On September 30, 2008, the plaintiff, a contractor who builds commercial swimming pools, filed a lawsuit in state court alleging that the defendant, with whom he was insured under a Commercial General Liability insurance policy, breached their contract by wrongfully denying coverage for a claim made against him by the Girl Scouts that he constructed a defective swimming pool (Docs. 1, 2).2 The case was subsequently removed to federal court (Doc. 1).

On October 31, 2008, the Girl Scouts filed a lawsuit against the plaintiff for breach of contract regarding the defective swimming pool ( see Doc. 11-6, ¶ 13). The plaintiff forwarded to the defendant a copy of that complaint, and subsequently transmitted an amended complaint, with a demand that the defendant defend and indemnify him ( id., ¶ 14).

On November 18, 2008, the defendant informed plaintiff's counsel that it had agreed to defend and indemnify the plaintiff in the lawsuit brought against him by the Girl Scouts with no coverage defenses being reserved, and that the only remaining issue was an attorneys' fee ( id., ¶ 15). Accordingly, the plaintiff filed with the court a "Notice of Partial Settlement Agreement," which stated that "the parties have resolved the coverage issues in this case" and that the only remaining issue is the attorneys' fee (Doc. 7).3

The parties disagreed whether the plaintiff was entitled to recover his reasonable attorneys' fees pursuant to § 627.428, Fla. Stat., which affords a prevailing insured a reasonable attorneys' fee. After considering the parties' memoranda on this issue (Docs. 11-13, 18), the court determined that the plaintiff was entitled to an award of attorneys' fee because the defendant's settlement of the case is considered equivalent to a confession of judgment (Doc. 24).

Thereafter, the plaintiff filed this Motion for Award of Reasonable Attorney Fees and Costs (Doc. 26), seeking an attorneys' fee of $104,650, and costs of $ 1,935. The defendant opposes the motion, arguing that a reasonable attorneys' fee in this case is $14,210, and that the costs are excessive (Doc. 35).

Plaintiff's counsel submitted their time records, and both parties submitted expert opinions in support of their contentions (Docs. 26, 30, 35). Oral argument was subsequently conducted on the motion ( see Doc. 42).

II.

Plaintiff's counsel seeks an award of an attorneys' fee under § 627.428(1), Fla. Stat., which provides in pertinent part:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named ... insured ... under a policy or
717 F.Supp.2d 1264
contract executed by the insurer, the trial court ... shall adjudge or decree against the insurer and in favor of the insured ... a reasonable sum as fees or compensation for the insured's ... attorney prosecuting the suit in which the recovery is had.
As indicated, the plaintiff is entitled to recover a reasonable attorneys' fee because a settlement is the functional equivalent of a verdict in favor of the insured under this statute (Doc. 24). Pepper's Steel & Alloys, Inc. v. United States, 850 So.2d 462, 465 (Fla.2003).4

Section 627.428, Fla. Stat., directs that the prevailing insured be awarded a "reasonable" attorneys' fee. Florida has adopted the federal lodestar approach as the foundation for setting reasonable fee awards. Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla.1985).

This method requires the court to determine a "lodestar figure" by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party's attorney. Id. at 1151. The fee applicant bears the burden of presenting satisfactory evidence to establish that the requested rate is in accord with the prevailing market rate and that the hours are reasonable. Id. at 1150-51; Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir.1988). Once the lodestar is determined, the court must consider in contingency fee cases whether a enhancement of the lodestar is appropriate. Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 831 (Fla.1990).

A. The plaintiff argues that he is entitled to a court awarded attorneys' fee of $104,650, which comprises a lodestar of $41,860, multiplied 2.5 times (Doc. 26, p. 15). The defendant argues that a reasonable attorneys' fee in this case is a lodestar of $14,210, and that no multiplier of this sum is warranted ( see Doc. 35, p. 17).

In computing the lodestar amount, the following factors, enumerated in Rule 4-1.5 of the Rules Regulating the Florida Bar, are to be considered ( Standard Guar. Ins. Co. v. Quanstrom, supra, 555 So.2d at 830 n. 3):

(1) The time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature;
(4) The significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained;
(5) The time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and
(8) Whether the fee is fixed or contingent....
Both parties rely on the affidavits of their fee experts, which incorporate these factors,
717 F.Supp.2d 1265
in support of their respective positions as to the amount of a reasonable attorneys' fee (Docs. 30-1; 35, pp. 30-34).

1. Reasonableness of the Number of Hours Expended.

Florida courts first calculate the number of hours reasonably expended on the litigation. In this regard, "the attorney fee applicant should present records detailing the amount of work performed. Counsel is expected, of course, to claim only those hours that he could properly bill to his client. Inadequate documentation may result in a reduction in the number of hours claimed, as will a claim for hours that the court finds to be excessive or unnecessary." Florida Patient's Compensation Fund v. Rowe, supra, 472 So.2d at 1150 (citations omitted). The fee opponent then "has the burden of pointing out with specificity which hours should be deducted." Centex-Rooney Const. Co., Inc. v. Martin County, 725 So.2d 1255, 1259 (Fla.App.1999); see also Norman v. Housing Authority of City of Montgomery,...

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