State Farm Fire & Cas. Co. v. Palma, 4-86-2444
| Decision Date | 23 March 1988 |
| Docket Number | No. 4-86-2444,4-86-2444 |
| Citation | 524 So.2d 1035,13 Fla. L. Weekly 742 |
| Parties | 13 Fla. L. Weekly 742 STATE FARM FIRE & CASUALTY CO., Appellant, v. Margarita J. PALMA, Appellee. |
| Court | Florida District Court of Appeals |
Stephen C. McAliley of Law Office of Stephen C. McAliley and Associates, West Palm Beach, for appellant.
Ronald V. Alvarez of Ronald V. Alvarez, P.A., West Palm Beach, for appellee.
The present appeal in this case involves the allowance of an attorney's fee of $253,500 for the legal services of the appellee/insured's attorney in attempting to recover a $600 medical bill presented as a personal injury protection insurance claim.
Ms. Palma sustained injuries as a result of an automobile accident causing her to seek the care and treatment of a chiropractic physician. During the course of treatment, her doctor ordered a thermographic examination and a bill for $600 was submitted to Palma's insurer, State Farm, which refused payment therefor. It was the insurer's contention that thermographic examinations did not fall within the purview of medically necessary treatment authorized and required under the personal injury protection benefits provided by section 627.733, Florida Statutes (1983).
Palma sued State Farm for breach of contract in the Circuit Court of Palm Beach County and, after a six-day non-jury trial, suffered a judgment for the insurer. That judgment was appealed to this court, which reversed in Palma v. State Farm Fire & Casualty Co., 489 So.2d 147 (Fla. 4th DCA), rev. denied, 496 So.2d 143 (Fla.1986), and remanded the cause to the trial court for entry of judgment for Palma, including costs and attorney's fees for the trial and appellate proceedings.
On remand the trial court held an evidentiary hearing, during which each side adduced testimony from expert witnesses regarding the value of the services rendered by Palma's counsel, and awarded an attorney's fee of $253,500.
State Farm has appealed the fee award, contending, among other things, that the award is excessive; that the Rowe 1 formula utilized by the trial court was not applicable, and, if applicable, it was not properly applied. We have seriously considered all of the arguments presented, but find no reversible error demonstrated by any of them.
It appears that State Farm decided to "go to the mat" over the bill for thermographic studies because, apparently, it is a diagnostic tool which is becoming more widely used contrary to State Farm's view of what is "necessary medical treatment" as provided in the statute. Having chosen to stand and fight over this charge, State Farm, of course, made a business judgment for which it should have known a day of reckoning would come should it lose in the end. The court described a similar situation in McGowan v. King, Inc., 661 F.2d 48, 51 (5th Cir.1981), in reversing what it termed a "stingy" allowance of attorney's fees:
The borrower's counsel did not inflate this small case into a large one; its protraction resulted from the stalwart defense. And although defendants are not required to yield an inch or to pay a dime not due, they may by militant resistance increase the exertions required of their opponents and thus, if unsuccessful, be required to bear that cost.
The trial of the case took six days during which eleven medical doctors and a chiropractic physician testified to all aspects of the medical procedure and study known as...
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