Forthuber v. First Liberty Ins. Corp., Case No. 5D16–2599

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM.
Citation229 So.3d 896
Docket NumberCase No. 5D16–2599
Decision Date17 November 2017
Parties David FORTHUBER, Appellant/Cross–Appellee, v. FIRST LIBERTY INSURANCE CORPORATION, Appellee/Cross–Appellant.

229 So.3d 896

David FORTHUBER, Appellant/Cross–Appellee,
v.
FIRST LIBERTY INSURANCE CORPORATION, Appellee/Cross–Appellant.

Case No. 5D16–2599

District Court of Appeal of Florida, Fifth District.

Opinion filed November 17, 2017
Rehearing and Rehearing En Banc Denied January 24, 2018


James C. Hauser, of Attorney's Fees in Florida PL, Maitland, and Hewett G. Woodward, of The Woodward Law Firm, Orlando, for Appellant/Cross-Appellee.

C. Ryan Jones and Scot E. Samis of Traub Lieberman Straus & Shrewsberry, LLP, St. Petersburg, for Appellee/Cross–Appellant.

PER CURIAM.

Appellant challenges the adequacy of his attorney's fee award, pursuant to section 627.428, Florida Statutes (2010), rendered in this first-party insurance dispute. As the first of two issues raised on appeal, we address whether the trial court erred by refusing to consider the hours

229 So.3d 898

expended by Appellant's attorney while he was working at a prior law firm—the firm that originated the claim on Appellant's behalf. The trial court categorically rejected these hours because that firm had withdrawn from representing Appellant before conclusion of the case, thereby waiving any claim to a fee. We hold that the trial court erred in failing to consider these hours in its award of a reasonable fee "in favor of the insured," as provided in section 627.428. We also agree with Appellant that the trial court erred in limiting its prejudgment interest calculation by only including interest accruing through the date of the evidentiary fee hearing rather than the date it entered judgment. On cross-appeal, Appellee challenges a portion of the hours awarded by the trial court, claiming that they are attributable to time expended by Appellant's counsel while employed by a different prior firm. We affirm the issue raised on cross-appeal without further discussion.

Appellant was represented by three different law firms during the course of the proceedings below, although the same lawyer, Hewett G. Woodward, handled the case throughout the six-year dispute. Initially, Woodward worked for Latham, Shuker, Eden & Beaudine, LLP. He then switched to another law firm before starting his own firm. When Woodward left the Latham firm, the firm advised Appellant in writing that he had two options: (1) hire Woodward to complete the case or (2) engage a different lawyer of his choosing. For reasons that are not in the record, the letter did not offer Appellant the option of continuing with the Latham firm. The fee agreements between Appellant and all firms were contingent on a successful outcome and required payment of the greater of a percentage of the recovery or a statutory reasonable fee.

Appellant signed and returned the letter to the Latham firm, indicating his intent to continue with Woodward as his attorney. The Latham firm then filed a notice of charging lien and subsequently obtained court permission to withdraw as Appellant's counsel of record. During the resolution of a dispute between Appellant and the Latham firm concerning the merits of the firm's charging lien, the Latham firm's letter to Appellant was introduced into evidence. The trial court concluded that the Latham firm had forfeited or waived its entitlement to a fee by withdrawing from Appellant's representation before the occurrence of the contingency. This ruling was apparently not challenged by the Latham firm and is conceded as correct by the parties to this proceeding.1

After Appellant and Appellee settled the underlying dispute, Appellee agreed that Appellant was entitled to a reasonable fee. It contended, however, that the trial court should disregard the 247.2 hours logged by Woodward while he was employed by the Latham firm because that firm had forfeited its fee. The trial court agreed. Accordingly, it refused to consider whether all or any portion of those 247.2 hours were reasonably incurred and could be included in its determination of a reasonable fee under the statute. Appellant challenges this conclusion, which we review de novo.

229 So.3d 899

We begin our analysis with a discussion of the applicable statute. Section 627.428 provides that a trial court "shall adjudge or decree against the insurer and in favor of the insured[who prevails] ... a reasonable sum as fees or compensation for the insured's ... attorney." § 627.428, Fla. Stat. (2010) (emphasis added). "[T]he statute is a one-way street offering the potential for attorneys' fees only to the insured." Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420, 421 (Fla. 1994). As the plain language of section 627.428 clearly establishes, the fees owed under the statute belong to "the insured not the insured's attorney." Fortune Ins. Co. v. Gollie...

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2 practice notes
  • Forthuber v. First Liberty Ins. Corp., Case No: 6:18-cv-00880-GAP-GJK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 27 Septiembre 2018
    ...Fifth DCA reversed and remanded the case back to the trial court to consider the Prior Firm Fees. Forthuber v. First Liberty Ins. Corp., 229 So. 3d 896 (Fla. 5th DCA 2017).1Page 3 II. Civil Remedy Notice On January 19, 2018, Forthuber filed and served on First Liberty a Civil Remedy Notice ......
  • Levesque v. Gov't Emps. Ins. Co., 21-12257
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 5 Mayo 2022
    ...the Levesques' alternative fee recovery clause cannot create its own basis for fee-shifting. See Forthuber v. First Liberty Ins. Corp., 229 So.3d 896, 899 (Fla. 5th DCA 2017) (explaining that, if a party wishes to recover a fee in excess of the amount he was "contractually obligated to pay ......
2 cases
  • Forthuber v. First Liberty Ins. Corp., Case No: 6:18-cv-00880-GAP-GJK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 27 Septiembre 2018
    ...Fifth DCA reversed and remanded the case back to the trial court to consider the Prior Firm Fees. Forthuber v. First Liberty Ins. Corp., 229 So. 3d 896 (Fla. 5th DCA 2017).1Page 3 II. Civil Remedy Notice On January 19, 2018, Forthuber filed and served on First Liberty a Civil Remedy Notice ......
  • Levesque v. Gov't Emps. Ins. Co., 21-12257
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 5 Mayo 2022
    ...the Levesques' alternative fee recovery clause cannot create its own basis for fee-shifting. See Forthuber v. First Liberty Ins. Corp., 229 So.3d 896, 899 (Fla. 5th DCA 2017) (explaining that, if a party wishes to recover a fee in excess of the amount he was "contractually obligated to pay ......

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