Trumbull Ins. Co. v. Wolentarski

• Decision Date: 04 February 2009
• Docket Number: No. 3D07-3108.,3D07-3108.
• Parties: TRUMBULL INSURANCE COMPANY, a foreign corporation, d/b/a The Hartford Insurance Company, Appellant, v. Daniel WOLENTARSKI, Appellee.
• Court: Florida District Court of Appeals

2 So.3d 1050

TRUMBULL INSURANCE COMPANY, a foreign corporation, d/b/a The Hartford Insurance Company, Appellant, v. Daniel WOLENTARSKI, Appellee.

No. 3D07-3108.

District Court of Appeal of Florida, Third District.

February 4, 2009.

Butler Pappas Weihmuller Katz Craig, Anthony J. Russo, Tampa, and Eric M. Zivitz, Miami, for appellant.

Marlene S. Riess, for appellee.

Before WELLS, SHEPHERD, and SUAREZ, JJ.

WELLS, J.

Trumbull Insurance Company, d/b/a The Hartford Insurance Company, appeals from an order awarding Daniel Wolentarski over $59,000 in attorneys' fees purportedly for representation in the personal injury protection (PIP) claim asserted below. Finding no support for the award, we reverse.

In December 2005, Wolentarski brought suit against the Miami-Dade County School Board and Trumbull, his insurer, to recover damages he allegedly sustained when his vehicle collided with a school bus. The initial complaint was comprised of only two counts: Count I against the School Board titled "NEGLIGENCE CLAIM AGAINST SCHOOL BOARD," and Count II against Trumbull titled "NEGLIGENCE CLAIM FOR UNINSURED/UNDERINSURED MOTORIST BENEFITS." As to Trumbull, the complaint alleged only as follows:

That at all times material hereto, TRUMBULL INSURANCE COMPANY, a foreign corporation was doing business as THE HARTFORD INSURANCE COMPANY, hereinafter referred to as "HARTFORD", [sic] was authorized to do and doing business in the State of Florida as an insurance company.

....

That at all times material hereto, Plaintiff was insured by HARTFORD and said policy provided for uninsured/underinsured motorist coverage.

No mention was made in this complaint of entitlement to or denial of PIP benefits, nor did Wolentarski seek an award of attorneys' fees for litigating a PIP or any other claim.

For six months after this complaint was filed, the parties litigated these negligence/uninsured/underinsured motorist claims. The School Board sought to dismiss the negligence claim against it for failure to comply with the notice requirements stated in section 768.28(6)(a) of the Florida Statutes.¹ Wolentarski then moved for summary judgment on this issue. Wolentarski also moved to strike the School Board's section 627.737(2) affirmative defense.²

It was not until June 28, 2006, six months after this action commenced, that Wolentarski sought leave to amend his complaint to add a claim against Trumbull for payment of PIP benefits and for the first time to seek an award of attorneys' fees related to that claim, the only claim on which attorneys' fees were authorized.³ By this juncture, depositions (two to be exact) had already been taken and other discovery exchanged.

Following amendment to add the PIP claim, litigation continued primarily on the School Board's affirmative defenses. Wolentarski moved to strike the School Board's section 627.737 defense. The motion was granted. The School Board moved for reconsideration. The motion was denied. Wolentarski's motion for partial summary judgment on the School Board's claim that he had failed to comply with the notice requirements detailed in Chapter 768 of the Florida Statutes also was granted following a hearing on that motion.

On August 16, 2006, the action was mediated but impassed. One month later, Wolentarski settled his claim against the School Board for $30,000. The action was dismissed as to the School Board and as to Trumbull on the uninsured/underinsured motorist claim with each party to bear his or its respective costs and attorneys' fees as to those claims. Two months later, the parties resolved the remaining PIP claim and agreed that Wolentarski was entitled to section 627.428 attorneys' fees for litigating that claim.

Wolentarski's attorney thereafter submitted an affidavit in which he swore that he had spent 135 hours at a rate of $500 per hour "in litigation of this file in order to obtain settlement of the personal injury protection benefits."⁴ At a hearing held to determine the amount to be awarded for representation of Wolentarski in the PIP action, counsel testified that: (1) he had kept no contemporaneous time records during his representation in this action; (2) although the PIP claim had not been added to Wolentarski's complaint until near the end of his representation, in his opinion the PIP claim had always been a part of the action, entitling him to fees "relating back" to the time the complaint was filed; (3) from his page-by-page review of his file going back to inception of the action, he had been able to segregate the time that he spent litigating only the PIP issue; and, (4) he had expended 143 hours litigating the PIP claim.⁵ When pressed to provide some support for this astounding number of hours—which amounts to 17.9 eight-hour work days, or over three full five-day work weeks—spent working on a PIP claim brought shortly before the action was settled and after most, if not all, of the discovery had been completed on all issues—Wolentarski's counsel cavalierly testified:

THE COURT: Do you have some kind of work sheet when you went through and reconstructed it [the time spent on the PIP claim]?

WOLENTARSKI'S COUNSEL: No, I didn't do that either. I go through every page of the file, and I just add it up.

INSURER'S COUNSEL: Did you bring any of those sheets of how you added it up and invoices of saying on this day I did this and I am estimating .2?

WOLENTARSKI'S COUNSEL: No. I just said I don't do a worksheet. I add it up.

INSURER'S COUNSEL: Where are those sheets?

WOLENTARSKI'S COUNSEL: I told you—sorry we are not understanding each other. I told you I go through page by page and I add up the time. I didn't do it on a work sheet.

INSURER'S COUNSEL: Where are those sheets?

WOLENTARSKI'S COUNSEL: I don't do a sheet.

INSURER'S COUNSEL: I thought you said you added up the time?

WOLENTARSKI'S COUNSEL: I did.

INSURER'S COUNSEL: Where is that?

WOLENTARSKI'S COUNSEL: In my mind. I added it up page by page.

This testimony supposedly was "corroborated" by the testimony of counsel's fee "expert" who, contradicting counsel, stated that the claims were so intertwined that they could not be segregated thereby entitling counsel to be paid for the total amount of time he had spent litigating the entire case, which in the expert's opinion was between 133 and 215 hours. When questioned about why counsel would be entitled to an award of fees for all of the time that he had spent litigating all of the claims, the expert testified that he did not believe that counsel's file gave counsel credit for all of the telephone calls and other undocumented activities that he must have performed in this matter:

INSURER'S COUNSEL: ... You're aware on the two-count complaint initially brought there was no mention of PIP, true?

WOLENTARSKI'S EXPERT: The word was not mentioned on the original complaint.

INSURER'S COUNSEL: No request for attorney's fees in the original complaint, you're aware of that?

WOLENTARSKI'S EXPERT: That is correct.

INSURER'S COUNSEL: You're giving him all the credit for all the time spent on this complaint and everything that took place up through and including the resolution of the case, even though PIP wasn't mentioned, nor was there a request for attorney's fees mentioned, isn't that true?

WOLENTARSKI'S EXPERT: It is true because I think there is a lot of time missing. So I think his time is within the minimum range.

INSURER'S COUNSEL: You're not separating out any time for how much time he spent litigating the claim against the School Board, and how much time he spent litigating the UM claim, because only the claim for PIP benefits gives him a right for fees, isn't that true?

WOLENTARSKI'S EXPERT: I am not following your question. The first part about it, I am not able to separate out all the intertwined work.

INSURER'S COUNSEL: You looked at every page of the file.

WOLENTARSKI'S EXPERT: Yes.

INSURER'S COUNSEL: When you looked at every page of the file you didn't say, well, this letter doesn't have anything to do with this PIP, so cross that out. You didn't do that. You didn't do [sic]?

WOLENTARSKI'S EXPERT: I didn't do it in that fashion, no.

INSURER'S COUNSEL: And on the pages of where you came across something that was PIP related, you didn't create a document to say on such and such a date [Wolentarski's counsel] did this task, which is PIP related, and I am going to give him .4 hours or four hours or .2 hours. You didn't do that either?

WOLENTARSKI'S EXPERT: I didn't do that at all. It would have taken me another 20 hours to bill it if I was going to do it on a item by item basis in that fashion.

Based on counsel's and the expert's testimony, the trial court concluded that the reasonable number of hours expended by counsel on the PIP claim alone was 133 hours (a little over sixteen eight-hour days or over three five-day work weeks). The court also concluded that a reasonable rate for this attorney's services was $450 an hour.⁶ This, according to the trial court, made "the lodestar $59,850.00" for the PIP claim, about which the only real question raised below was whether New York or Florida law applied.⁷

We reverse this award for a number of reasons. First, we reject the notion that the late filed amendment to add a PIP claim and a request for related attorneys' fees relates back to the beginning of this action. "[W]hen a cause of action set forth in an amended pleading in a pending litigation is new, different, and distinct from that originally set up, there is no relation back." Livingston v. Malever, 103 Fla. 200, 137 So. 113, 118 (1931); W. Volusia Hosp. Auth. v. Jones, 668 So.2d 635, 636 (Fla. 5th DCA 1996). More specifically, amendments "relate back" if they "arose out of the same conduct, transaction, or occurrence originally set forth ...." Dailey v. Leshin, 792 So.2d 527, 532 (Fla. 4th DCA 2001). The original negligence claim against the School Board and the uninsured/underinsured claim against Trumbull asserted in ...